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Should the Palestinians Seek Justice NOW at the International Criminal Court?

[Prefatory Note: This post is a modified version of an opinion piece published by Middle East Eye on February 20, 2017. It calls particular attention to the punitive treatment of recourse to international law tribunals to address perceived grievances that is meant to discourage Palestinians from seeking relief at the International Criminal Court. On one level this form of lawfare underscores the weakness and vulnerability of Israel when the conflict is shifted from the battlefield to the courtroom. On another level it is meant to deny the Palestinian people, and their representatives, all legitimate amd moderate options by which to pursue their claims and address their grievances. It signals that the ‘enforcers’ of world order repudiate their own accountability with regard to the rule of law, while purporting to hold others to account, for instance, by criminalizing all forms of violent resistance to prolonged and abusive occupation as ‘terrorism.’]

Weakening the Two-State Consensus

There is little doubt that the mid-February Netanyahu/Trump love fest at the White House further dampened already dim Palestinian hopes for a sustainable peace based on a political compromise. The biggest blow was Trump’s casual abandonment of the two-state solution coupled with an endorsement of a one-state outcome provided the parties agree to such an outcome, which as so expressed is a result almost impossible to suppose ever happening in the real world. Israel would never agree to a secular one-state that effectively abandons the Zionist insistence on a Jewish state with deep historical roots and biblical validation. The Palestinians would never agree to live in such a Jewish one-state that essentially abandoned their long struggle to achieve national self-determination, thereby gaining liberation from the last major remnant of the colonial era.

With geopolitical bravado suitable for the real estate magnate that he remains, despite the presidential trappings of his formal role, Trump also vaguely promised to negotiate a grand deal for the region that evidently reached beyond the contested territory of Palestine so long locked in conflict, and thus encompassed neighboring countries or possibly the whole region. It is easy to speculate that such murmurings by Trump were not welcomed in either Jordan or Egypt, long favored by rightest Israelis as dumping grounds for Palestinians in the West Bank and Gaza. Such added ‘political space’ is attractive from an Israeli perspective, both to ensure that Israel maintains a comfortable Jewish majority if the one-state solution were ever forcibly implemented by Israel. At the same time the prospect of population transfer would allow Israel to achieve a higher degree of racial purity, a feature of the dominant Zionist imaginary long before Israel became internationally recognized as a state.

An inflammatory part of this new political environment is the accelerated expansion of the existing network of unlawful Israeli settlements located in occupied Palestine. Although near unanimously condemned in Security Council Resolution 2334 last December, Israel responded by defiantly announcing approval of thousands more settlement units, endorsing plans for an entirely new settlement, and by way of a Knesset initiative provocatively legalized settlement ‘outposts,’ 50 of which are distributed throughout the West Bank in direct violation of even Israeli law. It is possible that the Israeli Supreme Court will heed anticipated judicial challenges to this latest move, and eventually void this Knesset law, but even if this happens, the passage of such a law sends a clear message of iron resolve by the political forces currently steering Israeli policy never to permit the establishment of a viable Palestinian state.

In these circumstances, it becomes incumbent upon the Palestinian Authority to show the world that it is still alive, and it currently has few ways of doing this. Given these realities it would seem a no brainer for the PA to light up the skies of public awareness of the Palestinian plight by vigorously demanding justice at the International Criminal Court (ICC). After all there is a wide consensus on the global stage that all the settlements, and not just the outposts, are in violation of Article 49(6) of the Fourth Geneva Convention. These settlements have for decades served as a major obstacle in the search for a satisfactory diplomatic solution of the conflict. Of course, it would be naïve to expect Israel to comply with an adverse judgment of the ICC, or to participate in such a proceeding in ways other than by challenging the competence of the tribunal, but a favorable outcome would still be of great value for the Palestinians. It would cast Israel in an unfavorable light in relation to the UN, international law, and world public opinion, and undoubtedly encourage the further development of the already robust global solidarity movement.

Yet, despite these circumstances that makes the ICC seem such an attractive option, a PA decision to take this path is far from obvious. The former Foreign Minister of the PA and member of Fatah’s Central Committee, Nasser al-Kidwa, effectively dismissed the ICC option by calling it ‘complicated’ without any further explanation, leaving the impression that the costs of taking such a step were too high. However, the issue is not yet settled as mixed signals are emanating from Palestinian leadership circles. For instance, the PLO Secretary General, Saeb Erekat, in contrast to Kidwa, minced no words in his insistence that the ICC investigate “the colonial settlement regime.”

It seems useful to speculate on why there should be this ambivalence among Palestinian leaders. After all, international law, international public opinion, and even most European governments are all supportive of Palestinian claims with regard to the settlements. Israel remains more defiant than ever, and shows every sign of further expansion, possibly with an eye toward soon unilaterally declaring an end to the conflict, a move that Washington might find temporarily awkward, but in the end, acceptable. At the core of this debate about recourse to the ICC is the tricky question as to whether deference to the muscular vagaries of geopolitics serves Palestinian interests at this time.

Recourse to the ICC: Pros and Cons

The argument favoring recourse to the ICC is almost too obvious to put forward. It would back Israel into a corner. The Netanyahu government is certain to react with anger and concrete expressions of hostility to any such move by the PA. Such a reaction would be widely seen as a convincing confirmation of Israel’s vulnerability to any impartial test as to whether its settlement policies meet the minimum requirements of international law. And most importantly for the PA it would demonstrate that despite recent political disappointments the Ramallah leadership was prepared to embark upon a controversial course of action that displayed political courage, including a willingness to endure expected vindictive acts of retaliation. Recourse to the ICC would play well with the Palestinian people, especially those living under occupation. They experience daily tensions with violent settler groups and see no future for themselves absent confrontation with Israel. If the PA chooses such a course, it would help restore support for the flagging claims of the PA to serve as the sole legitimate representative of the Palestinian people at the global level. This is turn could lead finally to durable arrangements of unity as between Hamas and Fatah, which would raise confidence levels that the Palestinians were prepared for this latest, difficult stage of their national movement.

The arguments against going to the ICC are somewhat more elusive. There is no doubt that Palestine, recognized by the UN as a state now enjoys the jurisdictional qualifications to participate in ICC proceedings. What is less clear is whether the ICC would be responsive, and able to circumvent technical obstacles, such as finding suitable Israeli defendants. During its 15 years of operation the ICC has been very reluctant to be pro-active except in Africa, and even there it has been recently stung by an intense pushback by African governments and the African Union. The ICC has been reluctant to stir up political opposition in the West, which would certainly occur as soon as the ICC launched a full investigation of Palestinian criminal grievances against Israel.

There is also the reverse problem of ICC action that might disappoint the PA. To appear balanced, the ICC would probably extend its investigation to include allegations relating to indiscriminate rocket fire from Gaza. It could then decide that a strong case of probable criminal responsibility attributable to Hamas existed, while allegations against Israel failed because of the inability to establish criminal intent. Although a setback for the PA, such an outcome at the ICC would be internationally criticized as contrary to reasonable interpretations of international law, and be widely regarded as a reflection of political pressures exerted by Washington.

Likely, the PA is most inhibited by the ‘lawfare’ campaign being waged by Israel and the United States. Already during the Obama presidency there was Congressional legislation terminating financial assistance to the PA in the event of any recourse to the ICC. Since Trump these warnings have escalated, including the total suspension of financial aid, the closing of the PLO offices in Washington, and threats to put the PLO and Fatah back on the US list of terrorist organizations. It is evident that the PA is taking these unseemly threats seriously.

There are also PA fears that any ICC initiative would induce Israel to move more quickly toward closure with respect to the underlying conflict, annexing most or all of the West Bank. Such a reaction would both be in keeping with Israel’s tendency to respond disproportionately to any formal action directed at the legality of its policies and practices. Israel is particularly sensitive about war crimes charges, and vows extraordinary measures should any of its citizens be so charged. Now that Netanyahu can count on unconditional support in the White House and the US Congress it would not be surprising to see him use the occasion of an ICC initiative to proclaim Israeli sovereignty over the whole of historic Palestine.

Conclusion

In light of the above, it seems almost certain that the PA will not act take advantage of the ICC option any time soon. The PA is likely to adopt a posture of neither/nor, that is, neither explicitly ruling out recourse to the ICC, nor activating the option. This reflects the reality that the PA is caught between the rock of US/Israel bullying tactics and the hard place of an increasingly restive Palestinian population, being acutely reminded of its ordeal by the grim realization that 2017 is the 50th anniversary of the Israeli occupation.

The United States posture, although somewhat more belligerently pro-Israel as a result of the Trump presidency, is really nothing new except in style. Even during the Obama presidency the US opposed every attempt by the PA to rely on international law or the UN to advance its national struggle. Instead of welcoming the use of law rather than weapons, the US Government castigated efforts of Palestine to gain membership in the UN System or to seek even symbolic relief for its grievances in international venues. This turn against international law, as well as against the UN, is clearly a signature issue for the Trump presidency, and not just in relation to Palestine, and this is not good news for the world.

[Prefatory Note: The review below was initially published in the Journal of the Contemporary Thought and the Islamicate World (SCITIW REVIEW). http://sctiw.org/sctiwreviewarchives/archives/74 It is one of three remarkable books dealing with Gaza that I read this past summer. The other two are Mohammed Omer’s Shell Shocked: On the Ground Under Israel’s Gaza Assault (2015) (see my July 8, 2015 post, “Wartime Journalism: Mohammed Omer on Gaza”) and Max Blumenthal’s The 51 Day War: Ruin and Resistance in Gaza (2015). Both of these books are accounts of the 2014 Israeli attack on Gaza by normatively engaged journalists. Omer giving an insider account that stresses the day by day experience of those exposed to such an onslaught that allows one to almost feel the excruciating pain, fear, and loss that Gazans felt during the attacks. Blumenthal also gives readers the benefit of his presence in Gaza and exposure to its courageous population, but he also includes valuable interpretative material. Their normative engagement is evident from their empathy with the Gaza ordeal of the Palestinians and understandable antipathy to Israel’s tactics and overall behavior. While discarding the liberal posture of neutrality, this high quality journalism under the most difficult and dangerous conditions in the sense of conveying the unfolding reality of important events in ways that deepen awareness and understanding beyond what mainstream media reports.

What makes Filiu’s book so important, beyond its extraordinary historical depth that allows readers to better grasp the tragedy that has befallen the Gazan people, is its persuasive insistence of the centrality played by Gaza throughout the experience of Palestinian resistance to Israeli dispossession and annexation, including the originality of the uprising known as the first intifada in 1987, and even more so an insistence that the Gaza holds the key to any kind of sustainable peace between Israel and Palestine. This is a striking view, given the extent to which both Israel and the world treat Ramallah and the Palestinian Authority as central, and Gaza as marginal if not altogether dispensable in the context of diplomatic negotiations and the outcome of the conflict.]

The distinguished French historian, Jean-Pierre Filiu has produced a magisterial overview that recounts the ebb and flow of Gaza’s fortunes from ancient times up through the present. Although a member of the faculty of Sciences Po in Paris, Filiu is not a typical academic historian, having earlier served as a diplomat in Jordan, Syria, and Tunisia, published two novels, and even written popular songs, including one devoted to Gaza. Filiu’s pedigree training and scholarly contribution have earned him a deserved reputation as one of the world’s leading Arabists, and someone particularly expert on political trends in contemporary Islam. He has published several well-regarded books on the Middle East including The Arab Revolution: Ten Lessons from the Democratic Uprising (2011) and From Deep State to Islamic State: The Arab Counter-Revolution and its Jihadist Legacy (2015). The latter book poses the haunting question as to whether the political destiny of the peoples in the Middle East is to remain entrapped in the ongoing struggle between tyrannical leaders and Muslim fanatics. More than most commentators on the regional developments, Filiu perceptively realized that the democratizing hopes of the “Arab Spring” in 2011 would be short lived, and likely would be soon overwhelmed by a variety of counterrevolutionary forces intent on restoring an authoritarian status quo ante, however high the costs of doing so. The main motive of these counterrevolutionary elites was to avoid the twin fates of secular democracy and radical Islam.

Filiu’s authoritative treatment of Gaza starts with a useful background summary of its role as a trading center in the ancient world of the Middle East with a past traced back to the Hyksos people of the eighteenth century BCE. Readers are helpfully informed that Gaza, situated between Sinai and Negev Deserts and the Mediterranean Sea, became a major site of struggle for warring neighbors over the long arc of history, including Egyptian pharaohs, Persian kings, Greeks, Romans, Arabs, Fatimids, Mamluks, Crusaders, and Ottomans. Filiu emphasizes the rivalry between Baghdad and Cairo with respect to Gaza as contributing to the frequent changes of fortune confronted by the city and region. A second chapter is informative about the generally unappreciated relationship of Gaza to hallowed figures in Islamic tradition. For instance, one principal mosque in Gaza is built to honor the memory of the great grandfather of the Prophet and another is dedicated to one of Muhammad’s close followers who accompanied him on his sacred journey from Mecca to Medina. Both of these men were prosperous traders who brought caravans of goods from Arabia for sale in

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the markets of Gaza. After presenting this early history, Filiu devotes the remainder of Gaza to Gaza’s experience in the continuing struggle over Palestine’s future that began in a serious way with the Balfour Declaration of 1917 and the British Mandate established after World War I under the auspices of the League of Nations lasting until 1947 when Britain turned over responsibility for Gaza’s future to the United Nations.

The remaining fifteen chapters of Gaza narrate the tortured and tormented experience of Gaza, the scene of many dreams of liberation and peace, but also a place of frequent carnage and a continuing ordeal of massive suffering. Gaza, which covers 140 square miles, the size of several middle sized American cities, still plays a central role in the unfolding Israel/Palestine conflict. In this fundamental respect, Gaza is a detailed historical narrative of past and present, which also underscores the totally unresolved future of Palestine as a whole, leaving readers free to contemplate Gaza’s future through the sophisticated optic that Filiu provides.

Filiu has produced, in a manner that I find extraordinary, a study of Gaza’s history over this incredible sweep of time that manages to exhibit at each phase of the narrative an astonishing mastery of detail. Filiu presents us with the dizzying interplay of dominant personalities interweaved with accurate depictions of the many defining incidents that give substance to the complex history and experience of Gaza. Such a tours de force of scholarly achievement does not make for easy reading given the density of the material. As a whole, Gaza is somewhat overwhelming in its cumulative impact as a result of its long succession of unfamiliar names and recitation of one detail after another that are difficult for a normal reader to keep in mind. At the same time, beyond the weight of Filiu’s facticity is a wealth of interpretative knowledge that imparts an unprecedented understanding of the contemporary experience of Gaza and the part it has played for both Israelis and Palestinians in the unfolding conflict.

Despite this challenge posed by this seeming surfeit of names and events, a kind of pre- digital example of information overload, Filiu facilitates comprehension of the main narrative motifs by framing his central interpretative analysis through reference to illuminating conceptual themes. He proceeds chronologically assessing the unfolding Palestinian ordeal in three clusters of four chapters each: “1947-1967: The Generation of Mourning,” “1967-1987: The Generation of Dispossession,” “1987-2007: The Generation of the Intifadas.” The book concludes with a final chapter entitled “The Generation of the Impasse?” as if the currently blocked situation in the underlying conflict between Israel and Palestine that has dominated the lives of the Gazan people for several generations seems likely to continue to be their fate for the indefinite future. Filiu ever so slightly lightens this gloomy prospect by putting a question mark at the end of the chapter title, perhaps acknowledging that not even a master historian should pretend to foretell Gaza’s future with confidence or indicate with confidence hopes and fears that the impasse will be broken at some point.

With this framework Filiu brilliantly portrays the Palestinian ordeal as it has tragically played out during the 67 plus years since Israel came into existence as a sovereign state. There is no attempt by Filiu to write this contemporary history of Gaza from a detached point of view, that is, by suspending empathetic feelings and ethical judgments. The tone of the narrative and the spirit of Filiu’s personal engagement with the Palestinian tragedy is clearly conveyed on the dedication page: “To the memory of the thousands of anonymous who died in Gaza before their time though they had a life to live en famille and in peace.” In effect, without sparing Palestinians and their leaders harsh criticism for failures of competence in the course of his narrative, including their embrace of brutality and

corruption, Filiu laments Palestinian victimization and decries Israeli oppression. With such a perspective it is not surprising that Filiu is generally sympathetic with Palestinian resistance activities over the years.

In discussing partition, the plan proposed by the UN General Assembly to overcome the tensions between Jews and Arabs in Palestine, Filiu makes clear that the Zionist movement was pushing the British hard to endorse such a division during the latter stages of the mandatory period. For Zionist leaders partition seemed at the time the only available path leading to the establishment of a Jewish homeland in Palestine, thereby achieving the basic Zionist project in accord with the Balfour undertaking. In angry contrast, the most representative Arab voices in Palestine were early united in their fervent opposition to partition ever since it began to be seriously considered by the British government, increasingly aware of rising tensions between the resident Arab population of Palestine and the successive waves of Jewish immigration. Already in 1937 Fahmi al-Husseini, the mayor of Gaza, warned British authorities against partition and any related attempt to promote the emergence of Jewish statehood. Filiu quotes al-Husseini to illustrate this depth of opposition: “It would be better for the British government to consign the inhabitants of Palestine to death and destruction, or even to envelop them in poison gas, than to inflict upon them any such plan” (46). As we know, such Palestinian wishes were ignored not only by the British, but also by the organized international community acting under the auspices of the United Nations. In response to the mounting tension in Palestine between Jews and Arabs, Britain went ahead and proposed partition, which was consistent with their typical colonial endgame and legacy in many other parts of their collapsing empire (for instance, Ireland, India, Malaya, and Cyprus). When the UN in 1947 did finally propose partition in General Assembly Resolution 181, the British surprisingly abstained, perhaps feeling that there was nothing to be gained at that point by further antagonizing the Arab world, especially given the persistence of British interests in the region, epitomized by the retention of the Suez Canal.

The focus on the complex dialectics of victimization and resistance in Gaza is at the core of Filiu’s interpretative standpoint. This emphasis likely represents the most enduring contribution of the book to our appreciation of both the scholarship and policy relevance of the Gaza Strip to the overall story of the Israel/Palestine struggle. What Filiu does convincingly is to challenge the mainstream view that Gaza is but an ugly sideshow of the main Palestinian dramas, generally regarded by both sides to be the West Bank and Jerusalem. Of course, the centrality of Gaza’s victimization has become internationally recognized, especially after the imposition of a blockade in 2007 when Hamas took over the government in Gaza and during the last seven years when Israel launched savage attacks in 2008-2009, 2012, and 2014 that eroded the carefully orchestrated public image of Israel as a benevolent political actor. What Filiu significantly adds to this image of Gazan victimization is the understanding that the broader movement of Palestinian national resistance has been centered in Gaza since the onset of the conflict with the Zionist project, and that this pattern of resistance continues in Gaza more than elsewhere in Palestine despite the severe and prolonged forms of collective punishment imposed by Israel on the Strip over the course of decades.

Even more challenging is Filiu’s controversial insistence that a sustainable peace between Israel and Palestine can only be achieved if Gaza will be accorded a decisive role in the process. Filiu underscores this belief in his drastic revision of thinking surrounding the peace process in the closing sentences of Gaza: “It is in Gaza that the foundations of a durable peace should be laid…The Gaza Strip, the womb of the fedayin and the cradle of the

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intifada, lies at the heart of the nation-building of contemporary Palestine. It is vain to imagine that a territory so replete with foundational experiences can be ignored or marginalized. Peace between Israel and Palestine can assume neither meaning nor substance except in Gaza, which will be both the foundation and the keystone” (340).

Filiu’s view of a peaceful solution challenges the view of most Israelis that Gaza, without figuring in Israeli biblical claims, and containing 1.8 million Palestinians hostile to Israel’s very existence, has no place in Israel’s conception of its own final borders or of an acceptable outcome of the conflict. Israelis generally regard Gaza as nothing more than a bargaining chip in any future peace negotiations. From Israel’s perspective Gaza is the one unwanted part of occupied Palestine (in sharp contrast, with Jerusalem and the West Bank), an assessment provisionally expressed by Israel’s “disengagement” from Gaza in 2005, which involved the withdrawal of IDF forces and the removal of Israeli settlers in a plan conceived and implemented by the Israeli hardline leader Ariel Sharon. Gaza continues to be viewed as a threat to Israeli security if ever allowed to become consolidated with the West Bank in a future Palestinian state and is viewed as a threat to Israel’s ethnocratic and democratic claims if incorporated into a single Israeli state encompassing the whole of historic Palestine.

With respect to Gaza, Israelis seem now to prefer either retaining control over a subjugated and devastated Gaza or inducing Egypt to resume responsibility for administering Gaza. The Egyptian government has made clear its unwillingness to accept responsibility for governing Gaza, which makes the unfortunate present situation the most likely scenario for the foreseeable future. In this sense, the whole burden of Filiu’s assessment is at odds with the manner in which Washington framed the “peace process,” which, as might be expected, seems based on an acceptance of Israel’s view of the marginality of Gaza with respect to the final resolution of the conflict.

Filiu’s mode of highlighting Gaza also challenges the views of the Palestinian Authority, with its capital in Ramallah, that gives its highest priority to ending Israel’s occupation of the West Bank, getting rid of as many Israeli settlements as possible. The Palestinian Authority seems to care little about the fate of Gaza, especially since Gaza fell under the control of Hamas in 2007, although its formal position continues to include Gaza as an integral part of a Palestinian state.

In this respect, Filiu’s Gaza-centric interpretation of the conflict between Israel and Palestine is by far the most original and controversial part of his historical account. It rests on a carefully documented narrative of Gaza’s role as the true center of Palestinian resistance and resilience throughout more than six decades of struggle. As Filiu mentions, the most perceptive of Israeli leaders, notably David Ben-Gurion, were nervous about the developing situation in Gaza from the earliest period of Israel’s existence, especially as Gaza became the default option for many Palestinians displaced during the nakba, the occasions of massive expulsion and dispossession that caused so many Palestinians to be driven from their homes, and to seek sanctuary in Gaza, the West Bank, and neighboring Arab countries. In Filiu’s view, throughout the war that produced the establishment of Israel as a sovereign state, “…Israeli units were systematically driving the Arab population out of the combat zone even when their villages offered no resistance to the advance of the Zionists” (62). The sadness and desolation of dispossession resulted in Gaza becoming early in the conflict dominated and radicalized by refugees and their profoundly alienating experiences. In the late 1940s Palestinian refugees amounted to more than 75% of Gaza’s total population.

The large refugee camps spread throughout tiny Gaza became focal points of ferment and eventually resistance, taking the initial form of the fedayin insurgent activities from the

1950s on. It was the fedayin fighters that found ways to penetrate Israel and inflict casualties particularly on soldiers and police, and later, on Israeli settlers in Gaza. This type of armed struggle inevitably prompted Israeli reprisal raids that were from their outset deliberately disproportionate. As Filiu observes, “[i]t was in Gaza that the fedayin were moulded, and the Hebrew State would soon make Gaza pay for it dearly” (94). This prediction was fulfilled in 1956, Egypt being displaced from Gaza, and Israel occupying the Strip for four months as an aspect of the Suez War, with accompanying massacres of Palestinian civilians being carried out by the Israeli military prior to a UN protective force being inserted to monitor the border. Filiu asks this provocative question: “Is there any doubt that the history of Gaza would have taken a different turn had a Palestinian entity been established there, under UN protection, in defiance of Israel, while maintaining special ties with Egypt” (105-106)? Although Filiu seems to have meant the question to be rhetorical, I am skeptical of any supposition that Gaza might have been spared Israeli fury even if the UN had agreed to sponsor and protect Gazan self-determination and sovereignty within the less crystalized climate of opinion in 1956. The political will to confront Israel has never existed on a global level or within the United Nations except to the extent of adopting a public discourse sharply challenging Israel’s policies and practices that is reinforced by periodic censure moves that were generally softened or opposed by the West.

As dramatic as the fedayin phenomenon, the outbreak of the intifada in 1987 that witnessed an unexpected mobilization of Palestinian civil society in Gaza, later spreading to the West Bank, challenged Israel’s capacity to maintain order in occupied Palestine. As Filiu persuasively argues, it was the fedayin and intifada that finally lent credibility and inspiration to the Palestinian national struggle, somewhat overcoming the humiliating failure of the pathetic international efforts by neighboring Arab states to challenge the existence of Israel. The failure of these several regional wars, culminating in the disastrous Arab defeat in the 1967 War, which greatly expanded Israel’s territorial identity, resulted in a second and permanent occupation of Gaza, with the war having the geopolitical effect of transforming Israel in American strategic thinking from being a heavy burden on U.S. foreign policy in the Middle East to becoming a major strategic asset. Unfortunately for the Palestinians, “the rest is history.”

Filiu gives a fascinating portrayal of the rise of Islamism in Gaza, including a depiction of the charismatic leader, Sheikh Ahmed Yassin, who was assassinated by an Israeli missile in 2004. What Filiu’s discussion shows it that the early Islamic efforts in Gaza, inspired by and derivative of Egypt’s Muslim Brotherhood, were devoted on principle to resistance activities within the law, focusing on a long range view of liberation by way of family values and education. It was only as a result of Israeli oppression in Gaza and a growing rivalry for popular allegiance with the secular coalition, the Palestine Liberation Organization under the leadership of Yasser Arafat, that led to the formation of the militant Hamas, and with this development, to extreme violence, highlighted by suicide bombing attacks within Israel in the late 1990s, often directed at the civilian population. Israel, at first, actually encouraged the political emergence of Islam, supposing that it would weaken what was perceived to be its principal adversary, the PLO, but as time passed, and Hamas tactics shifted to suicidal violence, Israel treated Hamas as a terrorist organization, and remains unwilling to back off such a view despite Hamas’ effort to pursue a political track for reaching its national goals since it took part in Palestinian elections in 2006.

Arafat is duly presented as the leading Palestinian liberation figure and international diplomat, but also deeply criticized by Filiu for the political innocence of his deferential approach to the United States and accompanying naïve hopes that Washington would deliver

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a just peace to the Palestinians after the Oslo Framework of Principles had been agreed upon in 1993. Filiu draws our attention to Arafat’s reaction to the 1995 assassination of Yitzhak Rabin, which brought tears to his eyes and the tormenting cry “It’s over, it’s over” (234)—meaning the prospect of a negotiated peace died with Rabin. Although Filiu does not evaluate Arafat’s reaction, it seems exaggerated, given Rabin’s acquiescence in expanding the settlement movement in the West Bank and Jerusalem and his “iron fist” policies in reaction to the first intifada.

One of the several virtues of Filiu’s historical approach is his willingness to employ evaluative language to describe Palestinian experience of victimization and Israeli tactics of oppression. He repeatedly refers to Israeli practices as imposing “collective punishment,” and as resulting in “massacres” of innocent Gazans, and of the experience endured by Gaza’s population as trauma, including “collective trauma.” At the same time, despite being highly critical of Israel’s approach, Filiu avoids any condemnations based on international humanitarian law or international criminal law. Filiu does not, unlike Ilan Pappé and other critics of Israel’s behavior in Gaza, speak of “genocide” or even “crimes against humanity.” In general, I conclude that Filiu’s sense of critical history with respect to Gaza does not accord significant relevance to international law.

In conclusion, Filiu provides a reader with a wealth of information, an historical perspective that greatly deepens our appreciation of the importance achieved by Gaza in the past, and above all, depicts the brutality of Israel’s behavior toward the people of Gaza and its failure to quell the spirit of Palestinian resistance. At the center of Filiu’s argument, beyond his assessment that the present period is best characterized as one of “impasse,” is the claim that Gaza remains the keystone for a sustainable peace between Israelis and Palestinians, a view shared by neither the formal Palestinian leadership nor by any influential Israeli, American, or European leaders, past or present. However this issue is resolved, Filiu is highly successful in making a reader appreciate Gaza’s illustrious past and the crucial role that recent generations of its people have played in keeping the fires of Palestinian resistance burning even in the face of Israel’s cruel, domineering, and oppressive behavior.

A few final comments on Filiu’s historiography. First of all, I wonder whether it was necessary to provide so much factual detail in narrating the history of Gaza; it seems to me that the main interpretative lines of assessment could have been developed as authoritatively, and with a gentler reading experience. Secondly, I think that the ethical forthrightness of Filiu’s approach lent added clarity to his interpretive perspectives, and was valuable as a matter of “full disclosure” of author to reader. If hidden from view, it would have raised questions about integrity and trust. And thirdly, the inclusion of prescriptive ideas in a work of contemporary history gives greater practical relevance to the understanding of the past being set forth. Policymakers on all sides would gain much from Filiu’s deeply considered argument for the centrality of Gaza to the Palestinian national struggle and to hopes for a sustainable peace that protects the rights of both peoples on the basis of equality.

Retired British colonel, Richard Kemp, has been an ardent supporter of Israel’s three major military operations in Gaza conducted over the last six

years. He has collaborated on several occasions with the two notoriously pro-Israeli NGOs, UN Watch and NGO Monitor, serving on the Advisory Board of the latter and appearing as star witness under such auspices at the UN, most recently at a two-day side event at UN Headquarters in Geneva devoted to condemning the UN Commission of Inquiry Report on the Gaza War of 2014.

There is no doubt that Col. Kemp has the credentials to speak as a counterinsurgency specialist, having served as commander of British forces

in Afghanistan and elsewhere, where he acknowledges close cooperation with Mossad and the influence of Israeli tactics. In fairness, Kemp writes from such a militarist view with little effort to assess the relevance of international humanitarian law, treating ‘military effectiveness’ as determined by military commanders as the defining criterion of legality for a challenged battlefield practice. In his own words, “[i]t’s the dispassionate military perspective that I bring.” Of course, such an outlook ignores the relevance of international criminal law, which is to superimpose accountability as a constraining framework on this ‘military perspective.’ Actually, Kemp doesn’t so much ignore international criminal law as to (mis)interpret its rules so as to vindicate the tactics of the counterinsurgent side while condemning those of the insurgent.

On June 25, 2015 the New York Times published an opinion piece by Kemp assessing the UN Report. What I find scandalous and perverse on the part of this self-claiming authoritative media source, is to publish such a harsh and partisan dismissal of a prudent and overly balanced report without any kind of offsetting piece. I can only imagine the furor that would have been provoked if the NYT had published a piece by an expert in international criminal law, say William Schabas or John Dugard, calling for the indictment and prosecution of Israel’s political and military leaders on the basis of the Report. At least, if such a piece had been published alongside the Kemp article, NYT readers could have been exposed to the realities of controversy flowing from these UN allegations that Israel (and to a far lesser extent, Hamas) was guilty of war crimes.

Kemp begins his article with the claim that “..it pains me greatly to see words and actions from the UN that can only provoke further violence and loss of life.” As is ‘law’ imposed on the powerful and not their weaponry is responsible for violence and the loss of life in Gaza. We are not told exactly why reaches this perverse conclusion, but presumably Kemp believes that the condemnation of Israel’s use of indiscriminate and disproportionate force would embolden Hamas, and Palestinians generally, to continue to claim a right of resistance. What Kemp (and Israel) obviously seek is a circumstance in which whatever the dominant military forces do is validated by its effectiveness and what a population under domination does in opposition is condemned with the implication that resistance to Israel’s prolonged occupation is inherently unlawful.

Kemp’s puff piece is filled with bland endorsements of Israel’s most blatant propaganda. For instance, Kemp asserts, in complete disregard of the evidence, that Israel imposed the blockade on Gaza “only in response to attacks by Hamas.” While it is common knowledge, even in Israel, that the blockade has been maintained since 2007 as a ‘collective punishment’ imposed on the civilian population of Gaza, having little to do with security, which was mainly sustained by way of rigorous monitoring of all crossings to and from Gaza, and with Egypt’s cooperation at Rafah during the Mubarak era and since Sisi’s ascent. Kemp has nothing to say about Israel’s frequent lethal incursions into Gaza that have accompanied the occupation since it started in 1967, and he uncritically supports Israel’s distorted one-sided timeline that claims Israel only attacks in retaliation for missiles and mortar fire from Hamas, and never initiates violent interactions by on its own. Kemp also never refers to the ceasefires broken by Israel, as in the leadup to Operation Cast Lead at the end of 2008. Instead, as Kemp has written elsewhere of this earlier brutal attack on a vulnerable, cage population, “I can only say this: during Operation Cast Lead, the IDF did more to safeguard the rights of civilians in the combat zone than any other army in the history of warfare.”

Most disturbingly, Kemp writes in a condescending manner as follows: “The report is characterized by a lack of understanding of warfare,” as revealed by its failure to compare what Israel is doing with what the U.S. and Britain have done in Afghanistan, Iraq. In Kemp’s words, Israeli tactics are no different than those used extensively by American and British forces in similar circumstances.” What is most dangerous about this counterinsurgency worldview is its implicit reasoning that allows such conclusions to be set forth in good faith by professional soldiers. To begin with, Kemp is essentially correct that the counterinsurgency wars waged by the U.S. and Britain have relied on similar tactics, but does that make Israel’s pattern consistent with international law and morality? Most international law assessments of these uses of modern weaponry against densely populated civilian areas consider such tactics to be severe war crimes, not models to be invoked as validation.

Kemp’s state of play is revealed here: converting past crimes into authoritative precedents to justify present crimes, or to transform crimes into legitimate counterinsurgency tactics.

Beyond this, Israel’s tactics are worse in some instances than those of its predecessors. Whereas in Vietnam, the United States used its far less precise air power to inflict heavy casualties on the Vietnamese civilian population it refrained from attacking urban population centers as Israel did in the Gaza attack of 2014, as well as the earlier ones. Even in Falluja, the worst instance of American firepower directed at a city believed to be a center of insurgent opposition in Iraq to American occupation, the population was given ample time to vacate the city after warnings of impending attack. In contrast, except for the 800 Palestinians that held foreign passports who were allowed to leave Gaza, the remainder of the civilian population in Gaza was locked into the combat zone, losing even the desperate option of fleeing to safety by becoming a refugee. Col. Kemp, invoking his counterinsurgency experience and knowledge, never sees fit to mention such a damning ‘detail.’

Nor does he bother to point out that the whole of Gaza was a combat zone, and that civilians, including women and children, had no place of sanctuary and safety, other than to seek refuge in UN facilities and mosques, which then were turned into targets because of Israeli claims that weapons were stored in these places.

Parroting the worst elements of Israeli hasbara, Kemp sets forth this grotesque characterization of Hamas tactics: “Unable to inflict existential harm on Israel by military means, Hamas sought to cause large numbers of casualties among its own people in order to bring condemnation and unbearable diplomatic pressure against Israel.” To make such an extreme allegation without bothering to cite evidence is to portray Hamas as seeking the genocidal annihilation of its own people. This is an odd accusation in view of the evidence that Hamas became gained more popular support from the Gazan population after this Israeli attack than before, presumably because of its steadfastness under the most severe of pressures. Also, Kemp withholds comments on the repeated and strenuous efforts of Hamas to seek the renewal of the ceasefire prior to the initiation of the Israel onslaught in early July of 2014.

In effect, Kemp is appraising Israel’s behavior on the basis of the ‘new normal’ prevailing among counterinsurgency hawks that have led the West into war after war in its futile effort to defer the death of European colonialism, and its American sequel. What is done by the West is justified by military effectiveness (although without noticing that these wars have all been eventually lost), what is done by the forces of national resistance is criminalized if not demonized as ‘barbarism.’

It is not surprising that UN Watch and NGO Monitor organized an elaborate side event at the Palais des Nations in Geneva last week that featured Richard Kemp as its lead speakers, but included an array of other counterinsurgency specialists, with no attempt whatsoever to bring to bear the perspectives of international humanitarian law except in the spirit of Israeli apologetics. For description of this event held on June 29-30 see the home pages of either UN Watch or NGO Monitor. It is notable that unlike the response to the Goldstone Report in 2009 that featured denunciations of bias and personal attacks, the orchestrated reaction to COI report is more sophisticated, relying on a variety of substantive reports that set forth Israel’s claims of justification, a media blitz, along with major advocacy efforts by Israel’s well-trained NGO poodles.

A welcome contrasting vision, closer to law, morality, and reality is offered by Max Blumenthal in his new book, The 51 Day War: Ruin and Resistance in Gaza (2015). David Swanson, the noted anti-war activist, titles his review of Blumenthal’s book, “the 51-day Genocide” <http//davidswanson.org/node/4815> As Swanson puts it in his review of the book, “I can think of a few other words that characterized the 2014 assault on Gaza in addition to ‘war,’ among them, occupation, murder-spree, and genocide. Each serves a valuable purpose. Each is correct.”

Exactly a year ago, for 51 days between July 7 and August 26 Israel carried out its third major military assault (2008-09; 2012; 2014) on Gaza in the past six years. This last one, code named Operation Protective Edge by Israeli Defense Forces, was the most vicious, killing 2,251 Palestinians, of which 1,462 were civilians, and included 299 women and 551 children, as well as injuring 11,231, a number that includes 3,436 children, 10% of whom have permanent disabilities, and another 1,500 have been orphaned. Israel also suffered casualties: 73 killed of whom 67 were military personnel, and 1,600 injured. Additional to the human casualties, 18,000 Palestinian housing units were destroyed, along with substantial damage to Gaza’s electricity and sanitation systems, 500, 000 Palestinians (almost 1/3 of Gaza’s population) were forcibly displaced during the military operations and 100,000 remain so a year later, and 73 medical facilities and ambulances were destroyed or damaged. Due to the Israeli blockade, the aftermath of this onslaught has prevented a normal recovery, extending the period of suffering endured by the entire Gazan population. The magnitude of the Palestinian losses, as well as the comparison with Israeli losses, and the comparative ratio of civilians to military killed on the two sides, by itself suggests that the essential character of this Israeli undertaking is best understood as ‘state terror’ directed at Gaza’s population as a whole. Such conclusions are reinforced by Israel’s provocations during the month prior to the launch of the attack and by the refusal of its government even to consider frequent proposals by Hamas to establish long-term internationally supervised ceasefire proposals.

This one-sided impression of the events is not conveyed by the much anticipated UN Report of the Commission of Inquiry (COI) set up by the Human Rights Council to investigate violations of international human rights and international humanitarian law in July of 2014 that were occurring during Operation Protective Edge. The Commission was originally chaired by William Schabas, a leading world expert of international criminal law, but he resigned under pressure effectively mounted by Israel and the United States, centering on the discovery that Schabas has accepting a small consulting fee for some professional advice given to the Palestinian Liberation Organization a few years earlier. This unhappy development left the commission with only two members, Mary McGowan Davis from the United States and Doudou Déne from Senegal, with Judge McGowan being named as chair. Neither is considered expert in relation to the subject matter being investigated.

Balance amid Imbalance

The report strives for ‘balance’ carefully setting off violations by Israel against those of what it calls ‘Palestinian armed groups’ creating a profoundly false sense on the part readers as to equivalent responsibility for wrongful behavior by both Israel and Palestine. I agree with Ali Abunimah’s carefully formulated explanation for this misleading approach taken in the report and the deeper message being conveyed: “Despite the ‘balanced’ language that is now the habitual refuge of international officials hoping to avoid false accusations of anti-Israel bias, the evidence shows the scale and impact of Israel’s violence dwarfs anything allegedly done by Palestinians.” [See Ali Abunimah, “’Balance’ in UN Gaza Report can’t hide massive Israeli War Crimes,” Electronic Intifada, 22 June 2015] Or as the widely respected international NGO, BADIL, expresses a similar reaction: “In the language employed, there appears a desire to portray the adversaries as being on an equal footing, despite this being patently untrue, as revealed in the vast disparity in respective casualties and destructive capabilities…attempts to portray ‘balance’ where there is none is extremely problematic.” Typical of the imbalanced balance, the Report observes that “Palestinian and Israeli children were savagely affected by the events,” [§25] which is accurate in a literal sense, but a gross example of treating unequals equally, given the far greater severity of suffering endured by Palestinian children.

Looking for a glimmer of silver lining, some have endorsed this framing device of balance as justified to so as to persuade the mainstream media in the West, and especially the United States, to view the contents of the report more seriously as it cannot be dismissed simply by being called anti-Israeli, or worse, anti-Semitic.

As Abunimah emphasizes there is this strange mismatch between the strong evidence of Israeli disregard of legal constraints on military tactics that unduly imperil civilians and this rhetoric of balance, which in effect, assigns blame to both sides. This is not to argue that the criminality of resistance tactics employed by Hamas and associated military groups in Gaza should be entirely ignored, but rather that the primary human impact of Protective Edge was to leave Gaza bleeding and devastated, while Israel endured minimal damage and dramatically less destructive impacts on its societal order. Israeli damage was repaired almost immediately. In contrast, Israel’s refusal to allow ample reconstructions materials to enter has left substantial parts of Gaza in ruins, with many Gazans continuing to lack adequate shelter, remain homeless, displaced, and understandably traumatized.

Civilian Focus

Despite what might appear to be overly cautious language, a fair reading of the report supports three important conclusions:

that Israel’s supposed efforts to protect the civilian population of Gaza were grossly inadequate from the perspective of international humanitarian law, and probably constituted war crimes; and

that the military tactics employed by Israel on the battlefield were “reflective of broader policy, approved at least tacitly by decision-makers at the highest level of Government of Israel.”

that the focus was on the civilian victims rather than on a bland acceptance of arguments premised on ‘military necessity’ or ‘asymmetric warfare’: in the words of the report, “The commission considered that the victims and their human rights were at the core of its mandate.”

Such findings, coupled with the detailed evidence set forth in the body of the report, provide the International Criminal Court with a strong, if indirect, mandate to proceed further with its preliminary investigation of Israeli criminality in the Gaza War. Palestine is reinforcing this momentum by submitting its own body of evidence to back up allegations of Israeli criminality related to Protective Edge. The Commission makes clear that it is relying, as is customary for non-judicial inquiries of this sort, on a ‘reasonable grounds’ test of potential criminality [§11], which is not as rigorous as would be applied in an ICC trial of accused individuals where the test is often formulated “as guilty beyond reasonable doubt” or some wording to that effect.

The Report makes no pretension of making a professional determination as to whether criminal prosecution should follow from its findings, although in its Recommendations section it does urge both the ICC and national courts relying on Universal Jurisdiction to move forward with indictments and prosecutions if the apparent criminality of either side’s conduct is confirmed by further investigation. The ICC had already begun an investigation of its own in response to a Palestinian request after Palestine became a party to the Rome Treaty that provides the authoritative framework for addressing alleged international crimes at an international level. Whether the ICC can bring any perpetrators of Israel’s criminal policies to justice is extremely doubtful as Israel, a non-member, is certain to denounce the effort and the institution and refuse all forms of cooperation; it is relevant also to note that the ICC is not permitted to hold trials without the presence in the courtroom of those accused. Nevertheless, even the prospect of indictments and arrest warrants is itself a strong challenge to Israel’s approach to Gaza, and to the Palestinians generally, and it will further strengthen the BDS Campaign, as well as the wider global solidarity movement that rests on the delegitimizing of Israel’s policies and practices. It will also inhibit travel of Israeli political and military leaders to those countries that empower national courts to exercise universal jurisdiction in relation to well-evidenced allegations of violations of international criminal law.

Context

There are some definite positive elements in the Report beyond these general conclusions worth mentioning. Unlike prior assessments, including the Goldstone Report of 2009 dealing with Operation Cast Lead, the attack on Gaza that began on December 27, 2008, this new report specifies the context by referring to the Israeli blockade of Gaza as imposing “a continuing collective penalty against the population of Gaza,” [§15]. The Report fails to take the next logical step of identifying this penalty as a flagrant violation of Article 33 of the Fourth Geneva Convention that unconditionally prohibits any collective punishment, and hence is a continuing crime against humanity. Helpfully, though, the Report does say that “the impact of hostilities cannot be assessed separately from the blockade imposed by Israel.” This view is appropriately reinforced with the significant call for “a full and immediate lifting of the blockade,” [§24] although the relevance of the blockade is not stressed in the COI analysis of the combat tactics relied upon by both sides, which suffers from its resolve to appear ‘balanced.’

The Report also took innovative account of the fact that the Palestinians were suffering from ‘protracted occupation’ and that there was absent any prospect of peace between Israel and Palestine. [§14ff] Acknowledging that this defining reality has some bearing on the reasonableness of resistance tactics, and should be treated as relevant when assessing the severity of violations. In contrast, Israel as the occupier that has long not only failed to implement, but actively subverted, the unanimous Security Council injunction to withdraw from territory occupied in 1967, should be held to higher standards of compliance with international law by the UN. In the end, the incendiary question posed indirectly is “What are the Palestinians expected to do by way of resistance, considering that they lack precision weaponry and have long been victimized by a prolonged occupation that is oppressive and exploitative, and shows no sign of ending anytime soon?’

These contextual factors are also affected by a diplomatic context in which Israel insists on treating Hamas as a terrorist entity, despite the fact that Hamas has been offering long-term proposals for peaceful coexistence supervised by an international presence ever since it decided to pursue a political track to liberation when it participated successfully in 2006 elections in Gaza and the West Bank and effectively abandoned armed struggle, including suicide bombing, as its approach to liberation. Such a potential diplomatic path to Israeli security is not mentioned in the Report, or its legal correlative, that since World War II, recourse to war is legally valid only as a last resort even where legal claims of self-defense are well-grounded. In this regard, Israel’s refusal to explore a diplomatic alternative to war casts doubts on its claim to be acting in necessary self-defense. This diplomatic option for Israeli security should have been discussed in the Report even if it could not be definitively proven to exist. Also, not discussed, is whether given stage-setting Israeli anti-Hamas provocations in the West Bank, which are set forth in the Report, along with the absence of any substantial damage from Gaza rockets fired at Israel, the legal conditions for a claim of self-defense existed given the seeming absence of a prior armed attack as required by Article 51 of the UN Charter.

The Report relies on a methodology based on a reasonable interpretation of customary international law articulated by reference to three principles: of distinction (limiting attacks to discrete military targets) ; of proportionality (avoiding uses of force disproportionate to the value of the target); of precaution (taking reasonable measures to avoid civilian death and destruction). [§13] It is evident to the COI that Palestinian missiles, inaccurate and directed toward Israeli population centers, violate the principle of distinction even if they do little damage as do Israeli strikes directed at densely populated residential neighborhoods that inflict massive damage. For instance, the Report condemns the Israeli use of massive firepower against Rafah and Shuja’iya “in utter disregard of its devastating impact on the civilian population.” [§58] Although the Report finds that the use of human shields by either side is a violation of the laws of war, it fails to find sufficient evidence to reach any firm conclusion.

Recommendations

In the conclusions and recommendations of the Report there are various calls made for greater vigilance in following through, arguing that imposing accountability for violations of international criminal law is relevant to avoiding a repetition of the Protective Edge experience. In this spirit the Report indicates that the victims, in particular, stressed examining “the root causes of the conflict” as an essential step toward future. [§75] There was also a determined emphasis placed on overcoming impunity with respect to such crimes, and in particular, “Israel must break with its lamentable record in holding wrongdoers responsible.” [§76] There is also a specific call to support the work of the ICC, and for Israel to accede to the Rome Treaty that controls the operation of the ICC.[§86(e); 89(d)]

The recommendations that are most relevant are set forth in §86(d):

“To address structural issues that fuel the conflict and have a negative impact on a wide range of human rights, including the right to self-determination; in particular, to lift, immediately and unconditionally, the blockade on Gaza; to cease all settlement-related activity, including the transfer of Israel’s own population to the occupied territory; and to implement the advisory opinion rendered on 9 July 2004 by the International Court of Justice on the legal consequences of the construction of a wall in the Occupied Palestinian Territory.”

This enumeration is a departure from the tone and substance of balance, and calls upon Israel to bring its behaviour as Occupier into conformity with international humanitarian law. It refrains from mandating the dismantling of the unlawful settlements, but otherwise goes quite far in relation to human rights, including self-determination, settlement expansion, and the wall to address the most fundamental Palestinian grievances.

Conclusion

As might have been anticipated, despite the balance of the Report, it was attacked as biased even before being made public by Israel and the United States, and its presentation in an open debate at the Human Rights Council was boycotted. Israel went further, issued extensive report prepared under the aegis of the Israel Defense Forces that exonerated Israel on all counts. [Special Report, ‘Operation Protective Edge,’ Israel Defense Forces, June 2015; “The 2014 Gaza Conflict: Factual and Legal Aspects,” Israel’s Ministry of Foreign Affairs, June 2015] It also invited a group of ‘high-level’ military officers and diplomats to review the allegations, which also vindicated Israel’s claims in its consensus report. [“Key Preliminary Findings of the High Level International Military Group on the Gaza Conflict,” June 12, 2015, UN Watch home page] In effect, the familiar battle lines are drawn at inter-governmental levels, making it clear that nothing can be expected to flow from this Report beyond a further recognition that if the Palestinian struggle is to advance at this stage it will depend on the activism of civil society rather than on the policies of governments or the implementation of the Report’s recommendations by the United Nations.

At the same time, as with the earlier Goldstone Report, it is important that this COI fully documented the essential charges with elaborate evidence, and legitimates the coercive tactics of Palestinian resistance and the nonviolent militancy of the global solidarity movement. As the COI noted, Israel again refused cooperation with the investigative efforts from their outset. The political weight of the Report is augmented by the fact that its findings and recommendation were formally received with approval by a vote of 41-1 in the Human Rights Council.

As could be anticipated, the United States was the lone member of the HRC that refused support to the Report. Even Europe, voting as a unit, gave its positive endorsement. Human Rights Watch made the following observation: “The lack of support by the United States—the only state to vote against shows a disappointing unwillingness to challenge impunity for serious crimes during the Gaza conflict and to stand up for the victims of war crimes during the conflict.”

It is sad that despite the abusive attitudes exhibited by the Netanyahu government toward the Obama presidency there is no willingness on the part of Washington to back international criminal law in such circumstances of gross violation. When the United States Government, still the world’s most influential political actor, gives such precedence to the most cynical aspects of alliance politics it sends a powerful message that governments can freely abandon principled foreign policy whenever it conflicts with hard power calculations of geopolitics (and in this instance, more relevantly, with the soft power dynamics of American domestic politics).

A POMEAS Compilation of Writings Relating to Israel’s 50 Day Attack on Gaza

[Prefatory Note: since the Gaza ceasefire, tensions have not abated. There are renewed signs that Palestinians are increasingly restive and Israelis are moving ever closer to a dual culmination of the Zionist mission—formalizing 1- the Jewish character of Israel regardless of its implications for equal rights (the inequalities embedded in nationality law, hidden beneath the pseudo-equality of citizenship); consolidating control over Jerusalem by settlement expansion, house demolitions, and through the manipulation of residency permits and taxation; 2-proceeding with the annexation or incorporation of either the whole of the West Bank or substantial portions, possibly mainly defined by the territories set aside as Article C in the Oslo process, comprising roughly 60% of the West Bank; these moves reinforced by the selection ofReuven Rivlin as President of Israel, a right wing Likud follower of Jabotinsky who has been long known as an advocate of a Israeli one-state solution coterminous with historic Palestine. These two sets of trends were intensified by the Gaza attack, sharpening Palestinian frustrations with the violence of the occupation and reinforcing Israeli ambitions with security concerns. Some of the selections below have been published online in this blog site, but the compilation, initially prepared for the POMEAS project of the Istanbul Policy Center at the University of Sabanci.]

Introduction

In july 2014, for the third time in less than six years Israel launched a major military operation against Gaza, causing alarming levels of death, trauma, and destruction. The one-sideness of these attacks makes the language of ‘massacre,’ ‘atrocity,’ and ‘crime’ seem more fitting than that of ‘war,’ much less the Israeli claim that it is acting in legal self-defense. During the 50-day stretch of unfolding carnage I tried to write responsively as the situation developed through its various diplomatic and military phases.

Now that a ceasefire is in place it is possible to reflect upon what is happening and to think about what might be done to avoid a recurrence of this recent intensification of what is already, without any special military assault, an intolerable situation. The 1.7 million people of Gaza have been subjected to a comprehensive blockade and lockdown ever since mid-2007, which is itself a flagrant violation of the unconditional prohibition on the collective punishment of an occupied people, as set forth in Article 33 of the Fourth Geneva Convention that sets forth the requirements of international humanitarian law.

A secondary theme that is explored in these essays is the complicity of the international and regional community. While protective action is proposed and undertaken on behalf of those enduring the exploits of ISIS in Syria and Iraq, the inter-governmental mention of any responsibility to protect the beleaguered people of Gaza is not even politically permissible to consider. Palestine, in general, has been victimized by what I call ‘the geopolitical veto’ exercised by the United States with varying degrees of support from Western Europe. This geopolitical veto is supplemental to the constitutional veto that is given by the UN Charter to the five permanent members of the Security Council. It can work both to authorize intervention by way of ‘a coalition of the willing’ as was the case in relation to Kosovo in 1999 or it can preclude the protective action needed to mitigate a humanitarian catastrophe as has been the case in relation to Israel and Palestine for many years.

It should be observed also that the people of Gaza have been further victimized by the wider tensions of the region, especially the hostility of the Gulf monarchies to any form of political Islam that rests on a democratic foundation. This reality was exhibited by their strong support for the 2013 military coup in Egypt that overthrew the elected government headed by Mohamed Morsi, the president whose background and leadership was misleadingly associated with the Egyptian Muslim Brotherhood. To much of the Arab world, Hamas in Gaza was treated as an offshoot of the Egyptian MB, and its existence was viewed as a threat to the stability of these Gulf states, despite their own Islamic orientations. It was thus shocking, although not surprising, that these Arab governments welcomed the Israeli attack, and lent their silent support, which exhibited the priority of political self-interest over religious and cultural identity. These themes and others are explored in the fourteen essays that appear here. Their aim is to create a coherent picture of what took place during the attacks on Gaza, including the aftermath that has generated some encouragement for Palestinian national ambitions. I wrote these short essays as the events unfolded over the 50 day period, a spectacle of sheer horror that the world was invited to watch. No revisions have been made.

An Ugly Massacre

What has been happening in Gaza cannot usefully be described as ‘warfare.’ The daily reports of atrocities situates this latest Israeli assault on common humanity within the domain of what the great Catholic thinker and poet, Thomas Merton, caIled ‘the unspeakable.’ Its horror exceeds our capacity to render the events through language.

The events in Gaza are essentially a repetition of prior Israeli incursions with heavy sophisticated weaponry in which the people of Gaza are the helpless victims of Israeli firepower with no place to hide, and increasingly without even such necessities of life as water and electricity whose facilities have been targeted by Israel’s precision weaponry.

By now we should all understand that one-sided violence whether in the form of torture or state terror is criminal behavior. When it leads to many civilian deaths on one side and few civilian casualties on the other side, then such state terror is best characterized as massacre, epitomized by the high civilian death toll on July 20th in the Gaza City neighborhood of Shejaiya where a crowded residential district was repeated shelled by heavy IDF artillery. As I write the latest casualty figures on the Palestinian side are 417 killed, over 3,000 injured, 75% of whom are estimated to be civilians; on the Israeli side, 19 killed, all but one of whom was a soldier.

As with earlier massive Israeli military operations carried out against the people of Gaza in 2008-09 and 2012, the defenseless Gazan population is again being cruelly victimized. If an adversary of the West was behaving as Israel has since July 8th, the day that its so-called Protective Edge military onslaught was launched, it would be branded an aggressor whose leaders would likely be held accountable before the International Criminal Court(ICC) or some other tribunal with authority to prosecute persons accused of international crimes that distressed the U.S. Government and its allies. Was this not the response to Slobodan Milosevic, Saddam Hussein, and Muammar Qaddafi whose criminality stood in the path blocking Western interests? But what of George W. Bush, Tony Blair, and Barack Obama whose crimes are shrouded in a thick cloud of impunity?

This contrast manifests the geopolitical logic of world order for all who have eyes that want to see ‘the real’ as opposed to heeding the ‘reigning hegemonic myths.’ It is this geopolitical logic that is shaping the application of [*]international criminal law: Accountability for enemies of the West, impunity for the West and its friends. Such double standards highlight the tensions between law and justice. There is currently no greater beneficiary of this deformed political culture of impunity than the political leadership and military command structure of Israel.

And yet there does exist an international criminal law and procedures for its application, and although so far successfully manipulated by the geopoliticians, the endgame of criminal accountability has yet to be played. Those who are victimized should not ignore its unrealized potential for justice, and the challenge posed to all who consider themselves ‘citizen pilgrims’ (on a life journey of human solidarity and faith in a better future): Law from above, justice from below. This is the populist equation that can guide us toward thought, feelings, and actions on ‘the right side of history.’

In this connection, I was moved by reports of the young activists in Ramallah and other cities in the West Bank putting forth the demand that Mahmoud Abbas “sign or leave!” That is, sign the Rome Treaty on behalf of Palestine, and thereby join the International Criminal Court, or give up the presidency of the Palestinian Authority because not fit to lead.

Such an impassioned call for criminal accountability expresses a populist demand that justice must finally be rendered by a court of law, and Palestinian victimization authoritatively confirmed and vindicated by overwhelming evidence of Israel’s multi-dimensional criminality. It is the faith of those who believe that the ICC is a tribunal of justice and not an instrument used as amoralizing convenience by power-wielders shielding their own greater criminality.

In practice, even if Palestine is accepted as a party to the ICC, and should the prosecutor, as seems unlikely, proceed to investigate, indict, and issue arrest warrants, the prospects of adjudication, conviction, and punishment are near zero. And yet the demand ‘sign or leave!’ makes political sense. Legal literalism misses the point.

For one thing, since Israel so intensely opposes Palestine’s adherence to membership in the ICC such an initiative should be presumed helpful for the Palestinians. For another, the mere recourse to the ICC would make a significant contribution the struggle between Israel and Palestine for the high moral and political ground, generating commentary and dialogue. We need to keep in mind that it is the outcome of this legitimacy struggle that will in the end likely decide this long conflict in favor of the Palestinians as it has determined the outcome of every prior anti-colonial struggle of the last 70 years. And finally, such moves toward Palestinian control over the legitimacy discourse would help mobilize global support for the BDS campaign, an arms embargo on Israel, and push governments and the United Nations finally to support the Palestinian call for pressure on Israel, use leverage and nonviolent coercion to obtain a sustainable peace that realizes Palestinian rights under international law, most especially, the right of self-determination and the right of return.

Palestinians have suffered for nearly a century as a result of what the international community decided on their behalf without seeking their approval, or even their consent. It is time that all of us, including those who act in solidarity, to be sure that it is the Palestinian national movement that decides what self-determination means for Palestinians. At this stage, the most authentic expression of Palestinian views on a just peace is contained in the declaration of 2004 by a coalition of civil society organizations that initiated the worldwide BDS campaign.

It is an illuminating commentary on the confusing political situation that it is the BDS leadership that is presently best able to act as a more authentic and legitimate voice of the Palestinian people than either the Palestinian Authority or Hamas. Palestinians may suffer from what has been widely identified as ‘a leadership deficit,’ but this is being offset by an innovative surge of ‘democracy from below,’ and how this might yet produce the first global intifada that will be the next, and hopefully the emancipatory stage in the Palestinian struggle.

Tormenting Gaza

For the third time in the last six years Israel has cruelly unleashed the full fury of its military machine against the defenseless 1.7 million people of Gaza, inflicting heavy civilian casualties and further devastation on the long besieged and impoverished Gaza Strip. With cynical disregard of the realities of this latest one-sided confrontation between Israel and Palestine, instead of condemning such recourse to massive violence as ‘aggression’ that violates the UN Charter and fundamental international law principles, the reaction of Western diplomats and mainstream media has so far perversely sided with Israel, citing the bland rationalization repeatedly stressed by Netanyahu that ‘every nation has the right to defend itself.’ And so it does, but not by way of aggression! From the UN Secretary General to the President of the United States, the main insistence has been that Hamas stop must all rocket attacks while Israel is requested ever so politely to show “maximum restraint.”

Up to now, the Israeli attacks have caused some two hundred deaths (more than half of whom are women and children; 80% civilians) and more than a thousand physical injuries (plus countless more injuries to mental health). In this period hundreds of rockets have been fired into Israel from Gaza, but have yet to cause a single death. The only reported serious injury to Israelis has been suffered by a person on his way to a shelter, making one aware that there are no shelters for Gazans subjected to much more lethal forms of firepower. Granted that such rocket attacks, indiscriminate in nature, are unlawful forms of resistance, to single out this lesser type of violence out and overlook the greater violence distorts the context in biased and unacceptable ways, and helps explain the distorted discourse in Western diplomacy. Surely, the greater occasion of terror is that being inflicted on the hapless Gazans as disclosed by comparing the casualty disparity, and surely the political condemnation by responsible governments and even more so by the UN should be directed at the aggressor, who also happens to be the only political actor with the means to end the escalating violence, yet defiantly lacks the will. This international reaction to this latest crisis confirms for all with eyes to see that geopolitical alignments, not law or justice, dominates the diplomacy of leading Western states and the UN, when it comes to the Middle East, and especially if it concerns Israel-Palestine, and never more so than in relation to Gaza.

After several days of the Israel attack, self-servingly code-named Protective Edge by Israel, President Obama made a low profile offer to mediate a return to the 2012 ceasefire that had been arranged through the good offices of Egypt after this earlier onslaught on Gaza. Whether the U.S. Government, the undisguised patron and unconditional supporter of Israel, has the credibility to play such a mediating role rather doubtful, but in any event, Israel showed no interest. It is possible that Hamas, weakened by developments in Egypt and elsewhere in the region, and facing the desperation of a terrorized and totally vulnerable people entrapped in the Gaza Strip, with a health system on the verge of collapse, might accept such a move even if excluded from participating directly in the negotiations, which would mean depending on the Palestinian Authority to represent Gaza’s interests. After all, Hamas, although prevailing in fair elections back in 2006, remains ‘a terrorist organization’ according to the Western diplomatic establishment, even though it has been in recent years mostly on the receiving end of Israeli state terrorism, and should be allowed to act diplomatically on behalf of Gaza and enhance its credentials as a political actor. At present, the issue may be moot as Netanyahu belligerently insists that no amount of international pressure will lead Israel to stop its attack until the ambitious political goals of the military operation have been attained. These goals include as a priority the elimination of Hamas influence in the West Bank, which is the prize that the current Israeli leadership covets in its quest to complete the Likud maximalist version of the Zionist Project.

An aspect of the distorted approach to responsibility for the violence in Gaza is the refusal of the West to take note of the connection between Protective Edge and the June 12th kidnapping and killing of the three Israeli settler teenage children and the surge of public and private sector revenge violence culminating in the grisly murder of Mohammed Abu Kheir, a 17 year old Arab boy a few days later in the Shuafat neighborhood of Jerusalem. Without ever disclosing evidence linking Hamas to such an atrocious crime the Netanyahu government and Israeli media reacted hysterically, immediately inciting a vicious campaign against suspected Hamas militants throughout the West Bank and East Jerusalem, including air strikes in Gaza. In this atmosphere many Israeli officials and media stalwarts were provocatively calling upon the Israeli citizenry to strike back at the Palestinians. It was in this inflamed atmosphere that the Israeli government undertook a massive campaign of collective punishment, itself a war crime: hundreds of Palestinians thought to be associated with Hamas were arrested and detained; house demolitions of the homes of suspects; killings of at least six Palestinians; lockdowns of entire cities; air strikes against Gaza.

All this was done despite the mounting belief of independent observers that the crime against the Israeli youths was carried out by two Palestinians unaffiliated with Hamas, perhaps with an initial plan to bargain for the release of Palestinian prisoners in an exchange. Never has it been asserted in high profile diplomatic circles of the West that the horrible crime provided Netanyahu with a pretext for unleashing an anti-Hamas campaign to complete the process of de facto annexation of most of the West Bank. This campaign seems far less motivated by a response to the kidnapping/murder than by the political objective of punishing the Palestinians leadership for defying the Netanyahu government for recently achieving a measure of reconciliation as between the Palestinian Authority and Hamas. Further in the background, but part of the context, is the Israeli interest in shifting responsibility away from themselves for the failure of the Kerry direct negotiations that collapsed at the end of April. And in the foreground, are the settlers and the settlements with their avowed intention of incorporating Samaria and Judea into the state of Israel once and for all, whatever the consequences.

So far, Israel has met calls for restraint and a ceasefire with contempt. Rumors of Hamas’s receptivity to a ceasefire have not been tested. Israel’s leaders have responded defiantly, suggesting that Protective Edge will not cease until the Hamas’ infrastructure is destroyed, whatever it takes, supposedly to ensure that no rockets will ever again be fired from Gaza, which would imply that Gaza was totally subjugated and completely helpless. When Palestinian civilians are killed and terrorized in the process of pursuing such an elusive goal, this is rationalized by Israeli officials as a regrettable side effect of what Israeli leaders are claiming to be a legitimate military undertaking. In a characteristic warped statement Netanyahu declared: “We are not eager for battle, but the security of our citizens and children takes precedence over all else.” Some Israeli top officials were clearer about Israel’s objectives than was the prime minister. The Defense Minister, Moshe Yalon, called for the total destruction of Hamas, which is tantamount to seeking a genocidal hunting license in relation to the entrapped people of Gaza and the oppressed population of the West Bank and East Jerusalem. The Deputy Minister of Defense, settler notable Dani Dayon, publically urged Israel to cut off fuel and electricity to Gaza. If such a policy is implemented it would virtually guaranty a grotesque humanitarian crisis.

While Gaza burns, the fiddlers at the UN content themselves by worrying about the text of a proposed Security Council resolution, which never materialized. Israel and the United States were reported to be using all the leverage at their disposal to avoid condemnations of the Israeli air strikes on civilian targets in Gaza and even hoping that the final text of a resolution, if any, will include their preferred language about every sovereign state having a right to protect itself. It now seems that there will be no resolution as the United States is refusing to accept the language of the drafters, and only a rather innocuous non-binding Security Council ‘statement.’

On the basis of this disillusioning global response to Israeli aggression, it should become clear that the Palestinian struggle for self-determination and justice needs to be waged worldwide primarily at the grassroots level. It has never seemed more reasonable and morally necessary for persons of good will to lend maximum support to the BDS (boycott,divestment, and sanctions) campaign that has been in any event growing rapidly. It is also time to demand that governments adopt sanctions seeking Israeli withdrawal from the occupation of Palestine. An appropriate further response would be for the UN General Assembly to recommend imposing an arms embargo on Israel, as well as a boycott on Israel’s arms exports. This would be, at first, a largely symbolic gesture as Israel has become a major weapons maker, exporting arms to many countries with a tasteless sales pitch that stress the benefits of Israeli weaponry because it is ‘field-tested.’ There is a special challenge to American governmental institutions and its taxpaying citizenry that have been providing more than $3 billion of military assistance aid, coupled with special arrangements beneficial to Israel, for many years.

It is painfully evident that state-to-state diplomacy and the UN have failed to produce a just peace despite decades of fruitless talks. It is time acknowledge that these talks have been carried on in bad faith: while the diplomats sat around the table, Israeli settlements relentlessly expanded, apartheid structures deepened their hold on the West Bank and Jerusalem, and Gaza was cordoned off as a hostage enclave to be attacked by Israel at will whenever a bloody sacrifice seemed useful from the perspective of national interests.

At least, the Secretary General of the Arab League, Nabil ElAraby, condemned the “dangerous Israeli escalation,” urged the Security Council to “adopt measures to stop Israeli aggression against the Gaza Strip,” and warned of the humanitarian consequences. Turkish and Iranian issued official statements along similar lines. There is so much regional turbulence at present that it is unlikely to hope for anything more than scattered verbal denunciations from authorities in the region preoccupied with other concerns, but given the gravity of the situation, attention needs to be refocused on the Palestinian ordeal. Pressure on Israel is urgently needed to protect the Palestinian people from further tragedy, and the Arab neighbors of Israel and the European states that long held sway in the region, are challenged as never before to do the right thing, but it is doubtful that any constructive action will be taken unless regional and global public opinion becomes sufficiently enraged to exert real pressure on these governments, and hence on Israel itself. To pursue this goal now should be made a top priority of the Palestinian global solidarity movement.

No Exit from Gaza: A New War Crime?

As the hideous Israeli assault on Gaza, named Operation Protective Edge, by the IDF enters its second week, overdue international appeals for a ceasefire fall on deaf ears. The short lived July 15th ceasefire arranged by Sisi’s Egypt had many accompanying signs of bad faith from its inception, including the failure to allow Hamas to participate in the process, insultingly conveying the proposed terms of the ceasefire through public media. The vague terms depicted, alongside the failure to take any account of Hamas’ previously announced conditions, suggest that this initiative was not a serious effort to end the violence, but rather a clever ploy to regain moral credibility for Israel thereby facilitating the continuation and even intensification of its violent military campaign that was never defensive in conception or execution. Rather than being a real effort to end the violence, such a ‘ceasefire’ seems best understood as a sophisticated for form of escalation produced by a descent into the lower depths of Israeli hasbara. Such an Israeli tactic was facilitated by the active complicity of the Egyptian government that shares with Israel an undisguised wish to destroy Hamas. Cairo regards Hamas as an offshoot of the Egyptian Muslim Brotherhood, an organization that has been criminalized and viciously repressed, and has collaborated with Tel Aviv ever since Sisi took over control of the Egyptian government.

Throughout Protective Edge Bibi Netanyahu has been telling the world that no outside pressure will alter Israel’s resolve to reach its military and political goals to disable Hamas for the indefinite future. The main official justification for such aggression is to make sure this time that Israelis will never again have to seek shelter from Hamas rockets, an elusive result that Netanyahu acknowledges could require a prolonged military campaign combining ground forces with a continuing air and naval assault. Others claim on Israel’s behalf that this attack on Hamas is a just response to its involvement in the kidnapping incident a month ago in which three Israeli settler teenagers were seized by two Palestinians, and soon afterwards brutally executed. Such a rationale would still be a hyperbolic form of collective punishment directed at the entire civilian population of Gaza, even if there had been a Hamas connection to the earlier crime, an involvement alleged from the very first moment, and yet up to now not substantiated by evidence even in the face of Hamas’ denial of any involvement. The internationally respected human rights and international law specialist resident in Gaza, Raji Sourani, has written that the scale and ferocity of Protective Edge is an application of what he labels the ‘Gaza Doctrine,’ a deliberate reliance on disproportionate force in any encounter in Gaza. The Gaza Doctrine is a renewal of what was originally known as the ‘Dahiya Doctrine’ after the destruction of the Dahiya residential neighborhood in south Beirut, where many of Hezbollah’s faithful

were living, during the 2006 Lebanon War. The inability of Hamas to mount any sort of defense for the people of Gaza or even to provide protection via shelters and the like, epitomizes the criminal nature of Protective Edge, and more generally, of totally one-sided warfare.

Leaving aside the debate on causes and justifications, the civilian population of Gaza, estimated to be about 1.8 million with women and children comprising 75% of the total, are trapped in an overcrowded war zone with no shelters and no apparent exit from terrifying danger. Even if families are lucky enough to avoid direct physical injury, the experience of screaming jet fighters attacking through the night, targeting, attack, and surveillance drones flying overhead 24 hours a day, sustained naval artillery barrages, not to mention the threats and warnings of an imminent ground invasion combine to create a nonstop horror show. It has been convincingly confirmed by mental health specialists that these realities result in a trauma inducing phenomenon on a massive scale with prospects of lasting and irreversible psychological damage, especially to children.

With these elements in mind, the idea of fulfilling the basic objective of international humanitarian law to protect civilians caught in a war zone

is being violated by Israel, although not altogether. Israeli officials claim that leaflets dropped on some intended targets, otherwise forbidden, that give residents a few minutes to vacate their homes before their living space is reduced to rubble, exhibits a humane intent and satisfies the requirements of international humanitarian law. Such a self-sanitizing gesture fails to discharge the obligations of an Occupying Power under international humanitarian law.

In a further escalation of the attacks, perhaps the prelude to a ground invasion, residents of northern Gaza are being told to flee the area, and tens of thousands have apparently done so. Hamas apparently urged these same people not to leave their homes dismissing Israeli threats as intimidating propaganda. Cynically interpreted, Hamas appears to be informing Israel that if they go ahead and invade, there will be responsible for causing many Palestinian civilian casualties, and the shock caused by such carnage will help eventually swing the international balance of opinion strongly in their favor.

The entrapment of the Gazan population within closed borders is part of a deliberate Israeli pattern of prolonged collective punishment that has for the past several years been imposed on Gaza. This amounts to a grave breach of Article 33 of the Fourth Geneva Convention, and as such qualifies as a potential Crime Against Humanity. The morbid clarity of criminal intent is further disclosed by Israel’s willingness to allow 800 or so Gazans who have dual citizenship and hold a foreign passport to leave Gaza by entering Israel at the Erez Crossing, including 150 with American passports. No other Palestinian residents of Gaza have the option of leaving even if disabled, sick, elderly, or young. The civilian population of Gaza is denied the option of seeking refugee status by fleeing Gaza during this time of intense warfare, and there is no space available within Gaza that might allow Palestinian civilians to become internally displaced until Protective Edge completes its dirty work.

In countries such as Iraq and Syria we grieve appropriately for the millions becoming refugees or ‘internally displaced,’ compelled by the dangers of the raging conflict to seek refuge somewhere in the country that is removed from the immediate dangers of inhabiting the war zone. We can sense the extremity of the humanitarian tragedy in Gaza by realizing that these people whose lives are being acutely jeopardized, have no place to hide from the brutalities of war. There is no doubt that the whole of the Gaza Strip is a war zone. Gazans who have endured many mortal threats and a siege since 2007, currently find themselves in situations of extreme hazard, and yet have no possibility of seeking temporary safety as refugees by crossing an international border. The idea of internal refuge is almost inapplicable given the ferocious nature of Protective Edge that has spared not one corner of the tiny and overcrowded Gaza Strip. To be sure, in response to Israeli warnings to abandon their homes tens of thousands of Palestinians are fleeing south from north Gaza. At present writing , an estimated 17 thousand Palestinians have obtained refuge in the 20 UN-run schools situated throughout Gaza. UNRWA is doing its heroic best to handle these desperate people but its buildings have limited space and lack the facilities to handle properly this kind humanitarian emergency–insufficient bathrooms, no beds, and not enough space to meet the demands.

This is not the first time that this exit challenge has been posed in Gaza. Back in 2008-09 and 2012, Israeli launched major military operations in Gaza, and the issue of the entrapped civilian population was brought to the attention of the UN and the international community, a challenge met as now with scandalous silence. The encirclement of Gaza by Israeli controlled crossings and fences, even worse than in the past due to an Egyptian political leadership that makes no secret of its hostility to Hamas. The overall humanitarian crisis is catastrophic in the risk it poses to the totally vulnerable Gazan social reality.

For some perspective, it is useful to recall that just prior to the Kosovo War in 1999, up to a million Kosovars crossed into Macedonia to escape anticipated NATO air strikes and because of a credible fear of an imminent ethnic cleansing campaign carried out by Serbian forces then controlling the country. As soon as the war was over and Serbia abandoned Kosovo, these refugees returned, having safely navigated the dangers of the war.

In Libya, too, the international community meaningfully responded in 2011 to the urgent crisis of an entrapped civilian population. In the Libyan crisis Security Council members talked piously about relying on the emergent norm of international law known as the Responsibility to Protect, or R2P, that validated intruding on Libyan sovereignty by way of a No Fly Zone that was established to protect the civilian population of Benghazi facing the vengeance of Qaddafi’s forces. This 2011 intervention has been much criticized because the humanitarian justification on which authorization for the undertaking was transformed immediately into a controversial regime-changing intervention that raised many objections. What is most relevant here is that the UN and the member governments of the Security Council acknowledged their responsibility to do something to protect a civilian population unable to remove itself from a combat zone. It should not be forgotten in comparing Libya with Gaza that humanitarian appeals seem much more effective when the country in question is perceived to have strategic value, especially large oil deposits.

The UN , aside from the admirable field efforts of UNRWA noted above, and the international refusal to adopt measures protective of the people of Gaza is unforgiveable, particularly as Gazans are being subjected to severe forms of violence that are approaching genocidal thresholds. Even so the UN and its leading member governments turn their heads and look away. Some do wors by actually endorsing Israel’s aggression. This pattern of behavior exhibits either a sense of helplessness in the face of Israel’s military juggernaut or even more disturbingly, a silence that can be construed as tacitly blessing this infernal entrapment of innocent and a long victimized people.

International law has little to say. International refugee law avoids issues associated with any right to escape from a war zone and does impose a duty on belligerent parties to provide civilians with an exit and/or a temporary place of sanctuary. International humanitarian law offers little more by way of protection to an entrapped people, despite the seeming relevance of the Fourth Geneva Convention devoted to the Protection of Civilians in Time of War. There is accorded to foreign nationals a right of departure with the onset of war, including even repatriation to an enemy country, but no right of nationals to leave their own country if under attack. And the generalized obligation of an Occupying Power to protect the civilian population is legally subordinated to its security needs, including military necessity, and so is generally of little practical use during an ongoing military operation.

What is evident in relation to the entrapped civilian population of Gaza is that

no legal obligation exists to provide for safe havens either within the country experiencing the warfare or beyond its borders. At minimum, this horrible cauldron of violence and vulnerability reveals serious gaps in international humanitarian law, as well as the absence of self-imposed moral constraints that might limit belligerent violence. Such unattended vulnerability to atrocity urgently calls for a supplemental international agreement, perhaps taking the form of a treaty protocol to the Geneva Convention conferring an unconditional right of exit on civilians entrapped in a war zone. There is also a need to make any denial of the right of exit a species of war crime within the purview of the International Criminal Court. It should also be considered whether there should be conferred a right of internal displacement, imposing an obligation upon the Occupying Power, a territorial government, and insurgent actor to establish and respect enclaves set aside for displaced persons and to allow unimpeded civilian departure from war zones so as to take advantage of internal displacement. There are further complications that need to be addressed including whether the territorial government or Occupying Power can invoke security considerations to deny exit and displacement rights to those it has reason to believe are entitled to respect as civilians.

For the present it is enough to observe that the civilian population of Gaza finds itself totally entrapped in a terrifying war zone, and that Israel, the UN, and neighboring governments have refused to accept responsibility to offer some form of humane protection. It is one aspect of the unacceptability of the Israeli military operation from a moral/legal perspective and the related failure of international humanitarian law to lay down suitable rules and procedures that respect the human dignity of civilian innocence so entrapped. Yet, as almost always in such situations, it is the presence or absence of political will on the part of leading geopolitical actors that is the decisive factor in determining whether victimized people will be protected or not.

And so it is with Gaza.

The Gaza Horror Show and Neighborly Crimes of Complicity

Of all the complexities surrounding the reaction of the world to the horrifying spectacle of Israel’s severe criminality in Gaza none is more perplexing than the complicity of most governments throughout the Arab world. What makes such detachment particularly bewildering is the degree of ethnic, religious, cultural, and historical commonality that create such close ties among the peoples of the region. And no single issue has been as unifying for these people than has their long intensely felt opposition to the injustice, suffering, and exploitation that the Palestinian people have endured for the past century as a result of the establishment of the state of Israel. Beyond this, it should be remembered that Arab neighboring countries jointly attacked Palestine in 1948 to prevent the establishment of Israel, and later embarked on failed wars in 1967 and 1973 to challenge Israel’s existence.

Official hostility to Israel continues to be formally expressed by many Arab countries to this day by refusing entry to anyone with an Israeli stamp in their passport. Anwer Sadat’s assassination in 1975 was interpreted as an extremist response to his willingness to make peace with Israel, and few Egyptians bothered to attend the funeral procession through Cairo of their slain leader who was mainly remembered for seeking to appease their hated enemy. Above all, the ongoing struggle for Palestinian self-determination is widely interpreted in the region as a battle against the last remnant of European colonialism.

Taken together these considerations make it mystifying why almost all governments in the region have seemed either to be flashing a green light in Israel’s direction or pointedly looking away. Given the criminality of the Israeli attack and the tragic ordeal inflicted on the Palestinian people, complicity by way of diplomatic endorsement , or even silence, is at the very least a breach in Arab and Islamic identity, and worse, seems to be a case of aiding and abetting genocidal political violence. Israel’s persistence in the face of near universal calls for a ceasefire is being widely attributed to the fact that they are being encouraged behind the scenes by Egypt and Saudi Arabia ‘to finish the job,’ not of the tunnels and rockets, but of Hamas, and do so even as the scale of the massacre expands to shock even the most morbid political imaginations.

Such behavior, although mystifying, morally unacceptable, and politically shortsighted, is not without its explanations. Understanding what is at stake helps us grasp broader developments in the region that have had a generally adverse impact on the Palestinian national movement, and particularly, Hamas

The Enemy of my Enemy

The core explanation of Arab complicity (excepting Qatar) has to do with the Arab governments hating and fearing the Muslim Brotherhood, of which Hamas is viewed as a branch, more than they resent Israel, and its encroachment of their region, and even its appropriation and control of Muslim sacred places in Jerusalem. That pushes the question one step further but it does not yield an answer.

Why this hatred of the Brotherhood? It is perceived as the essential expression in the Arab world of political Islam that is viewed as dangerous because of its grassroots strength. This fear of Arab regimes goes back to the Iranian Revolution when the overthrow of the Shah’s imperial rule sends shudder of fear throughout the Arab world, and especially among the monarchies. Hamas in this sense is particularly hated as it has been befriended by Shiite Iran, and thus challenges the other priority of the Saudis and the UAE, waging a sectarian struggle against Iran, which again aligns these Arab powerhouses with Israel.

Of course, in the foreground is the experience of the Arab anti-authoritarian upheavals in 2011, especially the dislodging of Mubarak in Egypt, followed by expressions of far greater grassroots electoral support for Muslim Brotherhood and Salafi candidates than had been expected. The Gulf countries made no secret of their disappointment with Washington’s refusal to do more to beat back the populist tide that swept over the Mubarak regime. And when the chance came, as it did during the presidential term of Modhamed Morsi, it was clear that support for the counterrevolutionary coup led by General Ahmed Fattah el-Sisi won immediate aid from Saudi Arabia and the UAE who poured in billions of dollars to create a soft economic landing in the new regime, welcoming its bloody crackdown directed at the Muslim Brotherhood as a whole, and not just its leadership.

I didn’t appreciate the relevance of some remarks made to me by Ayatollah Khomeini in Paris just as he was about to return to Iran to lead the new Islamic Republic. This austere religious leader was very clear about rejecting the notion of a national revolution in Iran as a description of what was taking place. He said again and again during the meeting, “This is an Islamic revolution, not an Iranian revolution.” He went on to observe that the dynastic regime in Saudi Arabia was decadent and oriented toward the West, and as illegitimate a source of governance as was the Shah’s regime that had just been overthrown in Iran.

The emergence of the Islamic State of Iraq and Levant reinforces Ayatollah Khomeini’s central message. Its proclamation of caliphate is precisely in line with this type of thinking. The whole carving up of the Arab world into a series of sovereign states was an imposition of European civilization, destroying and destabilizing the only true political community, that of the Islamic uma.

Hamas Hurt by the Sectarian Angle

The deepening of the sunni/shi’a divide, which was an unfortunate side effect of the U.S. occupation of Iraq, altered priorities in the region. This new pattern of alignments was most visible in relation to the Sunni-led insurgency in Syria seeking the removal of the Alewite regime of Bashar al-Assad. The Sunni identity of Hamas led it to develop tension with the three political actors who were most against the regional status quo: Iran, Syria, and Hezbollah. Hamas moved its political directorate from Damascus in Syria to Doha in Qatar, and lost the financial and diplomatic support it had been receiving from Iran.

Restored Authoritarianism in Egypt

The Arab Spring with its cascade of political uprisings in 2011 has since then unleashed powerful counter-revolutionary tendencies. The experience of Egypt is decisive in this respect. It first gave rise to strong democratizing expectations that were expressed, above all, by a call for much more active solidarity with the Palestinian struggle. In a series of elections, first for parliament, and then in 2012, for the presidency of the country, the Islamic Brotherhood surprised the established order by coming out on top. In this respect, affirming democracy collided with economic interests and societal values of urban elites and the armed forces. Also, the leadership provided by Mohamed Morsi as President disappointed most Egyptians, and made it easy to give rise to a crisis of governance that climaxed with the coup of July 3, 2013, which brought to power General Ahmed Fattah el-Sisi. The new regime in Cairo, enjoying the strong diplomatic and financial backing of Saudi Arabia and United Arab Emirates welcomed restored authoritarianism in Egypt, including its anti-Brotherhood agenda. Even the United States, supposedly championing democracy in the Middle East, the unfulfilled promise to Iraq, swallowed hard, and looked the other way while the Egyptian government not only reverted to its authoritarian ways of the Mubarak era, but went further in its bloody suppression of liberal opponents as well as its Brotherhood enemies.

The effects on Gaza were immediate and harsh. Hamas as owing its existence to the Egyptian Muslim Brotherhood was viewed as an enemy, and Israel as the enemy of their enemy, was suddenly seen, if not as a friend, at least as a

partner. The most tangible expression of this new Eyptian approach was the destruction of the tunnel network that had connected Gaza with Egypt, giving Hamas tax revenues and allowing the people of Gaza to deflect the hardships of a long-term blockade, but at black market prices.

With this background, it looked as if Israel would have an easier time bringing its military and diplomatic weight to bear than in 2012 when Morsi was in power, and clearly as sympathetic toward Hamas as el-Sisi is hostile.

The cruel cease-fire charade

So far, the diplomatic effort to end the violence in Gaza has failed miserably, most recently with Israel’s cabinet rejecting a cease-fire proposal from U.S. Secretary of State John Kerry. This attempt by Washington is representative of the overall failure of American policy toward the Israel-Palestine conflict, only on this occasion the consequences can be measured in the growing pile of dead bodies and the widespread devastation that includes numerous homes, public buildings and even artillery damage to several a United Nations schools sheltering Palestinian civilians.

The U.S. approach fails because it exhibits extreme partisanship in a setting where trust, credibility and reciprocity are crucial if the proclaimed aim of ending the violence is the true objective of this exhibition of statecraft. Kerry is undoubtedly dedicated to achieving a cease-fire, just as he demonstrated for most of the past year a sincerity of commitment in pushing so hard for a negotiated peace agreement between Israel and the Palestinian Authority. Yet throughout the failed peace process the United States exhibited all along this discrediting extreme partisanship, never more blatantly than when it designated Martin Indyk, a former staff member of the America Israel Public Affairs Committee (AIPAC) and former ambassador to Israel, to serve as the U.S. special envoy throughout the peace talks.

The U.S. approach up to this point to achieving a cease-fire in Gaza has been undertaken in a manner that is either woefully ignorant of the real constraints or callously cynical about their relevance. This is especially clear from the initial attempt to bring about a cease-fire by consulting only one side, Israel — the party bearing the major responsibility for causing massive casualties and damage — and leaving Hamas out in the cold. Even if this is a unavoidable consequence of Hamas being treated as “a terrorist entity,” it still makes no sense in the midst of such carnage to handle diplomacy in such a reckless manner when lives were daily at stake. When Israel itself has wanted to deal with Hamas in the past, it had no trouble doing so — for instance, when it arranged the prisoner exchange that led to the release of the single captured Israeli soldier Gilad Schalit back in 2011.

The basic facts seem so calculated to end in diplomatic failure that it is difficult to explain how they could have happened: The U.S. relied on Egypt as the broker of a proposal it vetted, supposedly with the approved text delivered personally by Tony Blair to President Abdel Fattah el-Sisi in Cairo, secreted endorsed by the Netanyahu government, and then publicly announced on July 15 via the media as a cease-fire proposal accepted by Israel, without Hamas having been consulted, or even previously informed. It’s a diplomatic analogue to the theater of the absurd. Last July, then-General Sisi was the Egyptian mastermind of a coup that brutally cracked down on the Muslim Brotherhood and criminalized the entire organization. The Sisi government has made no secret of its unrelenting hostility to Hamas, which it views as an offshoot of the Muslim Brotherhood and alleged responsibility for insurgent violence in the Sinai. Egypt destroyed the extensive tunnel network connecting Gaza with the outside world created to circumvent the punitive Israeli blockade that has been maintained since 2007. Was there ever any reason for Hamas to accept such a humiliating cease-fire arrangement? As some respected Israeli commentators have suggested, most prominently Amira Hass, the “normalization” of the occupation is what the Israeli military operation Protective Edge is all about. What Hass suggests is that Israel is seeking a compliant Palestinian response to an occupation that has for all intents and purposes become permanent, and seems to believe that such periodic shows of force will finally break once and for all the will to resist, symbolized by Hamas and its rockets, and now its tunnels. In this respect, the recent move to establish a unity government reconciling the Palestinian Authority with Hamas was a setback for the normalization policy, especially suggesting that even

the PA could no longer be taken for granted as an acceptably compliant ‘partner,’ not for peace, but for occupation.

Whatever ambiguity might surround the Kerry diplomacy, the fact that the cease-fire’s terms were communicated to Hamas via the media, made the proposal a “take it or leave it” clearly designed to show the world that Hamas would never be treated as a political actor with grievances of its own. Such a way of proceeding also ignored the reasonable conditions Hamas had posited as the basis of a cease-fire it could accept. These conditions included an unwavering insistence on ending the unlawful seven-year siege of Gaza, releasing prisoners arrested in the anti-Hamas campaign in the West Bank prior to launching the military operation on July 8, and stopping interference with the unity government that brought Hamas and the Palestinian Authority together on June 3. Kerry, by contrast, was urging both sides to restore the cease-fire text that had been accepted in November 2012 after the previous major Israeli military attack upon Gaza, but relevantly, had never been fully implemented producing continuous tensions.

Hamas’ chief leader, Khaled Meshaal, has been called “defiant” by Kerry because he would not go along with this tilted diplomacy. “Everyone wanted us to accept a cease-fire and then negotiate for our rights,” Meshaal said. This was tried by Hamas in 2012 and didn’t work. As soon as the violence ceased, Israel refused to follow through on the cease-fire agreement that had promised negotiations seeking an end of the blockade and an immediate expansion of Gazan fishing rights.

In the aftermath of Protective Edge is it not reasonable, even mandatory, for Hamas to demand a firm commitment to end the siege of Gaza, which has been flagrantly unlawful since it was first imposed in mid-2007? Israel as the occupying power has an obligation under the Geneva Conventions to protect the civilian population of an occupied people. Israel claims that its “disengagement” in 2005, involving the withdrawal of security forces and the dismantling of settlements, ended such obligations. Such a position is legally (and morally) unacceptable, a view almost universally shared in the international community, since the persistence of effective Israeli control of entry and exit, as well as air and sea, and violent incursions amounts to a shift in the form of occupation — not its end. Israel is certainly justified in complaining about the rockets, but the maintenance of an oppressive regime of collective punishment on the civilians of Gaza is an ongoing crime. And it should be appreciated that more often than not, Israel provokes the rockets by recourse to aggressive policies of one sort or another or that most primitive rockets are fired by breakaway militia groups that Hamas struggles to control. A full and unbiased account of the interaction of violence across the Gaza border would not find that Israel was innocent and only Hamas was at fault. The story is far more complicated, and not an occasion for judging which side is entitled to be seen as acting in self-defense.

In “Turkey Can Teach Israel How to End Terror,” an insightful July 23 article in The New York Times, the influential Turkish journalist Mustafa Akyol drew from the experience of his country in ending decades of violent struggle between the insurgent Kurdistan Workers’ Party (PKK) and the Turkish state. Akyol “congratulated” Turkish Prime Minister Recep Tayyip Erdogan (while taking critical note of his “growing authoritarianism”) for ending the violence in Turkey two years ago by agreeing with the imprisoned PKK leader, Abdullah Ocalan, to initiate conflict-resolving negotiations in good faith and abandon the “terrorist” label. Some years ago I heard former British Prime Minister John Major say that he made progress toward peace in Northern Ireland only when he stopped treating the Irish Republican Army as a terrorist organization and began dealing with it as a political actor with genuine grievances. If a secure peace were ever to become Israel’s true objective, this is a lesson to be learned and imitated.

Just as with the peace process itself, the time has surely come for a credible

cease-fire to take account of the views and interests of both sides, and bring this sustained surge of barbaric violence to an end. International law and balanced diplomacy are available to do this if the political will were to emerge on the Israeli side, which seems all but impossible without the combination of continuing Palestinian resistance and mounting pressure from outside by way of the BDS campaign and the tactics of a militant, nonviolent global solidarity movement.

Further Reflections on Civility (the following short essay illustrates the multiple ‘battlefields’ relevant to the Palestinian national struggle. It considers the victimization of a Palestinian-American scholar who lost a promised faculty position at the University of Illinois, a major American university, because he wrote some ‘uncivil’ tweets during Israel’s Protective Edge. Supposedly, it all happened because rich Zionist donors exerted pressure on the university trustees who in turn put pressure on the chancellor of the university. What happens in these symbolic battlefield changes the balance in the Legitimacy War being successfully waged by the Palestinians and their supporters, but it also causes casualties of the sort described below.)

I have been following the controversy swirling around the dehiring of Steven Salaita by unilateral fiat of the Chancellor of the University of Illinois, Phyllis Wise. As is now widely known, Steven was a tenured professor at Virginia Tech until he resigned his position some months ago to accept a tenure offer in the Department of American Indian Studies from Illinois. By past practice and reasonable expectations, it seemed a done deal until the Chancellor shocked the community by invoking her rarely used prerogative to withhold formal approval before forwarding the appointment for rubber stamping by the Board of Trustees, but was it her prerogative? It would seem that she did have some ill-defined authority to act, yet university governance procedures assume that any initiative of this sort be exercised in a consultative manner. This would have required the Chancellor to discuss her misgivings about forwarding the appointment with relevant faculty committees and administrators, as well as with the appointee. She has more recently acknowledged that she acted unilaterally, contending that she was acting unilaterally to avoid the embarrassment of having the Board reject the appointment.

Steven’s sole offense was to use his Twitter account to send our numerous tweets highly critical of Israel, especially during its military operations Gaza in July and August that killed over 2100 Palestinians, mostly civilians, including about 500 children. Steven is Palestinian-American born in the United States, but his grandparents were dispossessed by the nakba in 1948. According to unconfirmed reports his tweets angered some donors and alumni of the University of Illinois and several Jewish organizations to such an extent that they threatened to withhold funding if Salaita became a member of the faculty. Apparently, it was this kind of pressure that led the Board and the Chancellor to sacrifice Saleita, along with the principles of academic freedom and faculty participating in the hiring process.

Steven’s tweets were not gentle, and did express his abhorrence over Israel’s behavior in the strongest language at his disposal. Among the most frequently quoted of these tweets are the following:

By eagerly conflating Jewishness and Israel, Zionist are partly responsible when people say anti-Semitic shit in response to Israeli terror.

If Netanyahu appeared on TV with a necklace made from the teeth of Palestinian child, would anybody be surprised

I should make two assertions: 1) I would never use this kind of language even in the venue of social media; 2) it is highly inappropriate to take tweets into account in appraising the appropriateness and wisdom of an academic appointment; 3) I share Steven Salaita’s outrage over Israel’s conduct and what he calls the conflation of ‘Israel’ and ‘Jewishness’ as a way of making people who criticize Israel seem as if they are ‘anti-Semites,’ and be made to pay a heavy price in career and reputation; 4) I believe that Salaita’s appointment should be reinstated, and that Chancellor Wise should make a public apology, offer compensatory damages, and provide an assurance that his performance at Illinois will not be adversely affected by this incident; 5) my own examination of Salaita’s record as a classroom teacher and scholar confirms the judgment of the University of Illinois’ faculty process that his appointment was highly appropriate, and that his presence in the Department of American Indian Studies would be a definite plus for the students and the university.

Steven is a productive and talented scholar and a charismatic teacher, and any university should be thrilled to have him on their faculty. It is a sad commentary on the times that such an appointment should even be viewed as ‘controversial.’ It is also a regrettable indication that pro-Israeli forces are playing the anti-Semitic card to shield Israel from critics. This not only punishes a citizen’s right to speak freely but it tends to send a chilling message of intimidation throughout the academic community that it is better to be silent about Israel’s crimes than face the calumny and punitive effects of a Zionist backlash.

The main rationale for questioning the Salaita appointment was hidden beneath the umbrella of ‘civility.’ The anti-boycott activist, former AAUP President, Cary Nelson, who happens to be a professor of English at the University of Illinois, applauded the Chancellor’s move on these grounds.

Somehow someone who sends around tweets that would likely be viewed as offensive by some Jewish students and might them feel uncomfortable in his classes provides ample ground for the university to reverse what had the appearance of being a consummated appointment. In other words, the typical ‘bait and switch’ tactic of hiding the real grievance of anti-Israel fervor behind the pseudo neutral rationale of civility was relied upon. More than a decade ago Ward Churchill was similarly disciplined by the University of Colorado for the text of an undelivered speech (“On the Justice of Roosting Chickens”) that seemed to provide a justification for the 9/11 attacks, yet he was actually sacked not for the offending remarks that were clearly protected speech but for faulty footnotes in scholarly articles conveniently uncovered after more than a decade of distinguished service at the university (also ironically enough in a program devoted to ethnic studies and indigenous peoples that he headed).

This theme has now been echoed by a sudden outpouring of enthusiasm for civility on the part of university administrators, most prominently by University of California at Berkeley Chancellor, Nicholas Dirks, who had the audacity to applaud the 50th anniversary on his campus of the Free Speech Movement, one of the enduring glories of the 1960s, with a concern about the anti-Semitic overtones of criticism directed at Israel.

Granted for the sake of discussion that Salaita’s social media tweets are viewed by some as uncivil, should that provide grounds for banishment, or even censure? Of course, not. If a lack of civility is severe, and exhibited in relation to staff, colleagues, and students, it would raise relevant concerns. In Salaita’s case, his experience at Virginia Tech reveals an opposite profile, one of popularity and respect among and an admirable reputation as a promising young and engaged teacher/scholar. At this stage the final disposition of the case is up to the Board of Trustees, which has already swung strongly to the side of the Chancellor’s decision to stop the appointment. The Chair of the Board is Christopher Kennedy, son of Robert Kennedy and born on the 4th of July. This adds an Americana dimension to the ongoing battle of values. So far, this particular Kennedy offspring seems to be determined to bolster the illiberal side of the family legacy.

The battle lines have been drawn, and the war goes on. For the first time since the Chancellor’s decision became known, Steven Salaita is speaking today in public, holding a press conference in Champlain, Illinois where the university is located. There are rumors that he has been offered a settlement in the hope that the storm unleashed by his rescinded appointment will abate. There are uncertainties as to whether he will be offered a comparable position elsewhere, which will show us how wide the net of Zionist influence is cast. It is not encouraging to recalling the case of Norman Finkelstein, who despite scholarly excellence and productivity, has not been offered an academic job elsewhere after being denied a permanent position at DePaul University. This denial was supposedly due to the administration being persuaded by defamatory ‘anti-Semitic’ allegations evidently contained in a letter written by that Zionist stalwart, Alan Dershowitz.

Under these circumstances, then, it seems like the outcome of the Salaita case will clearly show us all the current balance between Zionist McCarthyism and academic freedom. That such a struggle should even be taking place is a national disgrace that suggests the fragility of academic freedom and the potency of money and regressive ideology.

Three Questions for Hamas (such questions are meant seriously, but it would give an incomplete impression if posing a set of questions for Israelis would not constitute a bigger challenge. It is Israel that has the weaponry that causes periodically severe devastation, imposes a punitive blockade, and is the oppressor. Recall Malcolm X’ s comment on why we must never lose sight of the crucial difference between oppressor and oppressed: “If you’re not careful, the newspapers will have you hating the people who are being oppressed, and loving the people who are doing the oppressing.”)

There is no doubt that Hamas has exhibited extraordinary resilience under the most difficult of conditions that have bedeviled its period of political leadership in the Gaza Strip that started in 2007. It also seems clear as persuasively argued by Sandy Tolan in a valuable Common Dreams article [Tolan, “Blown Chances in Gaza: Israel & U.S. Miss Many Chances to Avoid War, Aug. 13, 2014] that Hamas pursued multiple initiatives starting in 2006 designed to achieve calm and quiet in its relations with Israel, and that these initiatives, including back channel reassurance about peaceful intentions, were rebuffed without even being acknowledged by either Israel or the United States. It also seems the case that Israel acted to provoke the three most sustained military onslaughts directed at Gaza since 2008, and in each has relied on disproportionate force, inflicted numerous civilian casualties, and acted in a manner defiant of international humanitarian law. For these reasons Israel deserves to be treated as an ‘outlaw state’ for reasons set forth by Akbar Ganji and I argued in a two-part article appearing in the online pages of AlJazeera English [“The Outlaw State of Israel,” Aug. 20,21, 2014].

And yet Hamas also has some explaining to do if it wishes to be more widely accepted throughout the world as entitled to full respect as a legitimate political actor. This respect is crucial in the ongoing politics of enabling Hamas to play a major role in representing the national movement of the Palestinian people in all diplomatic settings. The announcement of a unity government between Fatah and Hamas was an important legitimating step in this direction. The following hard questions deserve convincing responses from those advocating the further legitimation of Hamas:

Why provide Israel with an argument for its massive military assaults by firing thousands of rockets that do minimal damage and give Israel a credible argument for recourse to defensive force applied disproportionately and causing intolerable levels of suffering for the people of Gaza? Are there not alternatives and better ways to sustain the spirit and substance of Palestinian resistance?

Is it not overdue to modify the language, tone, and substance of the Hamas Charter or Covenant of 1988 so as to reconcile such a foundational document with the more moderate diplomatic postures articulated by Hamas leaders in recent years? Why leave this gap that Israel can exploit to justify its refusal to deal with Hamas or respond to its frequently articulated political proposal of long-term peaceful co-existence? Either Hamas stands by this exterminist language or it must supersede it by a new formulation of goals and vision.

Can Hamas expect to be viewed favorably by public opinion and in diplomatic circles when it engages in grisly forms of revolutionary justice when dealing with Palestinians suspected of collaborating with Israel? As many as 21 Palestinians were reported to have been hung in prominent public places in Gaza on August 22nd on charges of collaborating with the enemy. Similar issues of summary execution arose in the context of the earlier Israeli aggressions in 2008-09 and 2012, and such behavior was then widely condemned by Palestinian human rights groups and many others in Gaza. Admittedly, the problems posed by collaborators is a great security threat given the realities of the blockade and vulnerability of Gaza, but Hamas jeopardizes its reputation and claim to be a legitimate political actor by so behaving, and to some extent nullifies the strong effort of its leaders in recent years to project a moderate ethically responsible image by word and deed. Putting the question differently, ‘why is it necessary?’ Many of us are aware that Israel uses all manner of ‘dirty tricks’ to induce collaboration when it recruits informers in Gaza, which should be the basis of empathy on the part of Hamas for compromised individuals or at the very least cause the wheels of justice to await the outcome of an evidence-based trial before imposing death sentences, and then not doing so in such dehumanizing and degrading manner?

I do not raise here the accusations associated with charges and counter-charges relating to the use of ‘human shields’ in the course of the fighting. The evidence is cloudy as to such behavior, and as to whether it occurrence reflects policy, or is a deviation therefrom. There are difficult issues of applying international criminal law in circumstances of asymmetric urban warfare, and an overall caveat about striking a self-righteous position with respect to the tactics used by either side is that military expediency has consistently prevailed over the constraints of law and morality throughout the history of warfare. A reading of Kurt Vonnegut’s Slaughterhouse-Five (1969) or a consideration of strategic bombing of German and Japanese cities during World War II, including the use of atomic bombs to incinerate Hiroshima and Nagasaki despite their irrelevance to the outcome of the war and the horrendous impact on the large civilian populations.

Let me conclude by observing that I have received much criticism, and worse, for repeatedly favoring the adoption of a positive attitude toward the Hamas effort to be treated as a political actor with legitimate grievances, and by observing that the behavior of Hamas in relation to Israel has been of a generally defensive nature in the face of constant harassment, unacceptable abuse, and an extreme campaign of delegitimation, even criminalization. It remains my judgment on the basis of evidence available to me that Hamas has sought a quiet border with Israel, and that Israel has been principally responsible for the violence, and beyond this, for virtually all of the death and destruction on the Gaza side of the border that has occurred in this period. It is also encouraging to take note of Hamas agreement to seek recourse to the International Criminal Court in pressing Palestinian grievances against Israel even though if an investigation of allegations goes forward it will include looking into contested aspects of Hamas’ behavior from the perspective of international criminal law.

The efforts of the international community and the UN to impose solutions, up through the failed Kerry initiative that collapsed last April, have not contributed to peace and justice either between Israel and Palestine, or in the wider region. Whether wittingly or not, the international diplomacy of the West has produced dispossession, violence, and seemingly irreconcilable conflict with disastrous and tragic consequences for the indigenous population of Palestine ever since the end of World War I.

The Outlaw State of Israel, Part I: Military Aggression, Human Rights Violations and War Crimes

(co-authored) Akbar Ganji (a courageous and wise human rights defender from Iran who was jailed for several years because of his activism, and now lives in exile within the United States. It was Akbar who proposed this framework and did the basic writing and research; I was definitely the secondary author)

Israel has become an outlaw state. In his book, The Law of Peoples, John Rawls defines (pp. 5 and 90) an outlaw state as one that systematically violates the universal principles of human rights, and commits aggression against other nations.

Israel is guilty of repeated such violations as well as several massive acts of aggression, making it reasonable and responsible to identify it as an outlaw state. Such a pattern of behavior also contradicts the most basic principles of international law as embodied in the UN Charter pertaining to the use of international force, and obstructs the fundamental promise in the Preamble of the Charter “to save succeeding generations from the scourge of war.

It has become appropriate for the international community and global civil society to act accordingly

Israel’s military aggressions against other countries

Israel was born in 1948. Resolution 181 of the United Nations General Assembly is widely regarded as the most convincing legal basis for founding the State of Israel. We should recall that the Palestinians were awarded 45% of the historic Palestine, while 54% was allocated to Israel, and 1% was set aside as a special zone to be used for the internationalized city of Jerusalem. After the 1948 War with the neighboring Arab nations, Israel’s territorial gains reduced the Palestinian share to only 22%. In the 1967 War Israel proceeded to occupy the Palestinian territorial remnant that had been temporarily administered since 1948 by Jordan and Egypt, and since that time has encroached on Occupied Palestine in several unlawful ways—by establishing and expanding large and numerous Israeli settlements, constructing a network of settlers-only roads, building a separation wall deep in Occupied Palestine declared illegal by a 14-1 majority of the International Court of Justice in 2004, keeping the 1.8 million people of Gaza under siege since mid-2007 in ways that constitute collective punishment, and annexing and enlarging the metropolitan area of Jerusalem. These actions called ‘facts on the ground’ have been accepted as new “realities” by the U.S. Government and by several European governments, making the establishment of a viable Palestinian State virtually impossibility. Present trends in Israel make permanent the denial of fundamental Palestinian rights, above all, the right of self-determination, and accompany this with a unilateral “validation” of Israeli expansionism. Furthermore, Israel has attacked Gaza three times in the last six years (2008-09, 2012, 2014) in a manner that constitutes aggression under international law and the UN Charter and involves numerous violations of the law of war

This denial of Palestinian rights and deviation from the rules of international law and norms of global justice should not be interpreted in isolation from a wider pattern of unacceptable Israeli behavior. In this regard, it is highly relevant to take note of various acts of aggressions committed by Israel against several other sovereign states as well:

Military attacks on Iraq in June 1981 that destroyed Osirak nuclear reactor that was under construction, with the apparent purpose of disrupting an Iraqi program to develop nuclear weapons and to preserve Israel’s undeclared, yet clearly existent, regional monopoly over nuclear weaponry

Invasions of Lebanon in 1978, and 1982, coupled with the Israeli occupation of southern Lebanon until 2000. In September 1982 Israel was charged with complicity in the Sabra and Shatila massacre carried out by Maronite Phalangist militia units in which between 1500 and 3000 Palestinian civilians were murdered in cold blood. The Kahan commission, established by the government of Israel to investigate allegations involving Israeli complicity associated with the 1982 Lebanon War, found that then Defense Minister Ariel Sharon “bears personal responsibility” as the military commander on the scene who facilitated Phalangist entry into the camps and watched the massacres unfold.

Invasion of southern Lebanon in 2006 that resulted in the 33 days warfare directed at Hezbollah, the destruction of residential sections in the southern Beirut associated with the formulation of the ‘Dahiya Doctrine’ rationalizing and justifying Israeli reliance on disproportionate uses of military power.

Attacks on October 2, 2007 on Syria destroyed its nuclear reactor in Deir ez-Zor region.

The attack of May 2010 in international waters on the Turkish passenger ship Mavi Marmara that was part of the Freedom Flotilla bringing humanitarian assistance to the people of Gaza in defiance of the international blockade, killing nine Turkish nonviolent peace activists.

At least three additional military attacks on Syria during 2013 and 2014 that involved bombing of targets to stop weapons from going through the country to reach Hezbollah in Lebanon, targets associated with location of Syrian Army units to lend assistance to the anti-Assad insurgent forces, and in retaliation for causing the death of an Israeli Arab in the Golan Heights.

Repeated military attacks in Sudan in 2009, 2011, and 2012, supposedly to disrupt the supply of weapons to Hamas in Gaza, causing many deaths.

In addition, Israel has occupied Syria’s Golan Heights since 1967, built unlawful settlements, and established a permanent presence. Israel has refused to withdraw from the West Bank and East Jerusalem, as called for by unanimous Security Council Resolution 242.

Add to these infringements on the sovereignty of Arab states the destabilizing fact that Israel secretly and illegitimately acquired and has continued to develop an arsenal of an estimated 300 nuclear warheads, the only state in the Middle East that has a nuclear arsenal, and the only country in the world that refuses to acknowledge its possession of nuclear weapons.

Systematic violations of human rights and the apartheid regime

Israel has always declared that it is the only democratic state in the Middle East. As pointed out by former U.S. President Jimmy Carter in his book, Palestine: Peace not Apartheid, Israel’s occupation regime in the West Bank has systematic discriminatory features of an apartheid regime. Further, the Palestinian minority resident in Israel is subject to as many fifty discriminatory laws that greatly restrict their individual and collective rights.

Recall that the South African regime also had a nominally “democratic” government, but it served only the white minority. The African black majority population was governed by a different set of laws, a cruel and exploitative apartheid regime in which the majority’s human rights were violated systematically. Palestinians in the West Bank have been living without the protection of law or the possession of rights since 1967, being subject to military administration and the oppressive practices of the Palestinian Authority, while the unlawful settler population enjoys the full protection of Israel’s rule of law.

As Gideon Levy, the progressive Israeli journalist writes Israel is “really only a democracy for its Jewish citizens who are quick to fall in line with the mainstream every time Israeli tanks roll across the border,” because even Israeli citizens that are opposed to their country’s aggression are attacked and threatened. A large number of Israelis are relatively recent immigrants, particularly from the former Soviet Union and Easter Europe, who enjoy a far more protected status than the several millions of Palestinians live under an apartheid regime in which they cannot vote in Israeli elections, do not have passports, cannot own property in many parts of Israel, and do not enjoy the social mobility that every human being is entitled to possess. The Palestinian people are also denied the right of self-determination, do not have any prospect of having an independent sovereign state of their own, or to join with the Israelis in the shared existence of a bi-national state in which the two peoples seek to live together on the basis of balanced unity, equality, with distinct spheres of autonomous administration and governance that is organized within the framework of a single sovereign state.

Israel’s war crimes against Palestinians

Not only does UN Security Council 465 speak twice of “Palestinian or Arab territories occupied since 1967,” but also declare and affirm that the Jewish settlements in the Palestinian territories represent a violation of 4th Geneva Convention. Grave violations of this Convention – as for example the defiant refusal to dismantle the settlements as unlawful under Article 49(6), or to dismantle the separation wall as mandated by the International Court of Justice – appear to be war crimes of great severity.

Israel removed its military forces and settlers from the Gaza Strip in its ‘disengagement’ initiative in 2005, but in actuality kept effective control of Gaza, and remained bound by the obligations contained in international humanitarian law as applicable to an Occupying Power. In effect, Israel transformed the conditions of life in Gaza from direct military administration to life imprisonment of the population in the largest open-air jail on earth. Israel retained its total control of Gaza’s entrances and exits, of its airspace and offshore waters, disrupting life within the prison walls by lethal periodic violent incursions Most Palestinian people living in Gaza have effectively been locked in there ever since 1967, and more unconditionally since 2007. At the same time, Israel has periodically launched massive military operations against Gaza, imposed and maintained an illegal blockade, committed frequent acts of cross-border violence, and committed numerous grave war crimes there over a period of many years:

Israel’s attacks on Gaza in 2012 killed 105 and injured 971, provoked by the Israeli targeted assassination of the Hamas military leader, Ahmed Jabari, as he was delivering a signed truce document.

Israel’s 2014 aggression against Gaza launched on July 8 has so far killed 1980 Palestinians, injured nearly 10,181, with 75-80% of the casualties being civilians. This massive Israeli military operation has caused more than 660,000 Gazans to be internally displaced, highlighting the denial of any right of Palestinians to leave the combat area throughout the military onslaught that has terrorized the entire population of Gaza. 470 Palestinian children are estimated to have been killed and as many as 3000 injured. In contrast, Israel’s losses in this attack have led to 68 Israeli deaths, of whom 65 were soldiers. The casualty disparity and the ration of both sides as between military and civilian deaths are both very significant indicators of relative moral responsibility of the carnage caused.

Israel has carried out 59,000 attacks on Gaza, dropping 15,000 tons of explosives on Gaza, which amounts to about 30% of the explosive power of the atomic bomb dropped on Hiroshima.

The Outlaw State of Israel, Part II: The Consequences of the United States Support

(co-authored with) Akbar Ganji

In Part I of this article we described the reasons as to why Israel has become an outlaw state. In this part we discuss the United States support for Israel and its consequences.

The United States as Israel’s servant

The United States has supported Israel without reservations since its founding in 1948. According to an agreement between the two countries, that has become a law in the U.S., The United States has committed itself to preserve Israel’s strategic and military superiority in relation to other countries in the Middle East. From 1949-2014 the U.S. has provided Israel with nearly $122 billion in aid, calculated by reference to fixed dollars. Counting the aid to Israel in 2003 dollars, from 1949 – 2003 the U.S. has provided Israel with $140 billion worth of military assistance, which has been increasing since 2003. The basic annual commitment to Israel is $3.1 billion, which is far more than military aid that has been given to any other country in the world, and this figure is an understatement, hiding a variety of supplemental appropriations and other benefits accorded uniquely to Israel. In effect, the United States has been subsidizing Israel’s aggressions, and ignoring American military assistance legislation that seeks to withhold such aid to countries that are not acting defensively and in accordance with international law.

The Obama administration has even increased the aid to Israel through its reliance on various special appropriations. Most recently Congress appropriated an additional $225 million for further development of the Iron Dome defensive weapons system.

The U.S. Senate has even approved a resolution according to which if Israel attacks Iran’s nuclear sites in the future defying international law, the U.S. is obligated to help Israel. It reads in part, “If the Government of Israel is compelled to take military action in legitimate self-defense against Iran’s nuclear weapons program, the United States Government should stand with Israel and provide, in accordance with United States law and the constitutional responsibility of Congress to authorize the use of military force, diplomatic, military, and economic support to the Government of Israel in its defense of its territory, people, and existence.” Of course, the language as written of ‘legitimate self-defense’ is understood to mean any action taken by Israel that is alleged to be ‘defensive,’ whether or not in conformity to international law, which limits such claims to situations of response to prior armed attacks. (See Article 51, UN Charter).

Among the many UNSC resolutions that seek to criticize or condemn Israel for its actions against the Palestinians, almost all have been vetoed by the United States. In fact, the U.S. government opposes virtually every resolution approved by any UN organ, including UN Human Rights Council (UNHRC), if it is deemed to be critical of Israel, and this includes even initiatives to establish fact-finding commissions of inquiry to determine whether charges of war crimes are well-founded. When Israel attacks the defenseless and completely vulnerable Palestinian people, the U.S. justifies such high-intensity and disproportionate violence as ”self-defense,” obstructs the issuance of a UN call for an immediate ceasefire, and gives diplomatic and material aid and comfort to Israeli aggression from start to finish.

After a fact-finding report on Israel war crimes in Gaza in 2008-2009 was approved by UNHRC, the U.S. and Israel successfully intervened with the Secretary General to prompt him to urge the non-implementation of the report in relation to Israeli accountability for war crimes. The US Government also used its leverage to prevent even the discussion of this important report, generally known as ‘the Goldstone Report,’ in the UNSC. When recently, the UN HRC approved a resolution to investigate Israel’s possible was crimes in Gaza, the U.S. cast the only negative vote.

Amnesty International has reported that the evidence of systematic attacks by Israel’s military forces on schools and hospitals in Gaza during the current warfare is overwhelming. It includes targeting those civilians seeking to escape the worst ravages of the Israeli attack by seeking shelter in United Nations schools and other buildings marked with the UN logo.

Human Rights Watch has reported on evidence of intentional shooting of Palestinians who were fleeing their homes, even after they had been ordered to do so by Israel’s military, and has declared such behavior to be a war crime.

We can only comprehend this partisan pattern of U.S. policy toward Israel by taking account of the leverage exerted on the government by the formidable lobby working on behalf of Israel known as AIPAC. Former President Jimmy Carter and the former President of Ireland and prior head of the UN HRC Mary Robinson have condemned this one-sidedness of American policy toward Israel and Hamas, insisting that as a first step Israel immediately ends without conditions the blockade of Gaza, allowing the long suffering people of Gaza to have finally some semblance of a normal life.

Consequences

The U.S. policy toward Israel has had dire consequences:

It has completely discredited the claim of United States to act as an impartial arbitrator between Israel and the Palestinians.

Hatred and resentment toward the United States has been increasing throughout the region, not only because of the blind support of Israel by the U.S., but also due to the military onslaughts directed against Iraq, Libya, and Afghanistan, and by drone attacks in Pakistan, Yemen, Somalia, and elsewhere.

According to a poll right before the current war, 85% of Egyptians and Jordanian, 73% of the Turks, and 66% of the Palestinians view the U.S. unfavorably, while 84% of Israelis have a positive view of the U.S.

What Israel has done in the region with the support of the U.S. has contributed greatly to the growth of extremism and discord throughout the Middle East. If such policies are not reversed even more chaos, extremist violence, bloodshed, and devastation are likely to emerge in the future.

The Middle East and North Africa have been unstable for decades, and the consequences of the intensifying instability are spreading to other regions and endangering world peace.

These policies of unconditional support for Israel have long been against the national interests of the United States. The Israel-Palestinian conflict is the mother of all problems in the Middle East. Israel has undermined all efforts to find a peaceful solution by way of diplomacy. It has rejected both the Arab Initiative of 2002 and ‘the roadmap proposed by the Quartet – the U.S., Russia, the European Union, and the UN – which require that Israel to withdraw to its pre-war green line borders of 1967 with the expectation that a sovereign and independent Palestinian state would emerge. This view of what is required of Israel as a precondition for peace have been consistently endorsed by the United Nations and enjoy wide support of world public opinion, already set forth in Security Council Resolution 242 that has been frequently reaffirmed since its unanimous adoption in 1967. It should be understood that ending the occupation of Palestinian territories is not by itself sufficient to achieve a sustainable peace. Of paramount relevance is also some arrangement that acknowledges the rights of several million Palestinian refugees who were forcibly expelled over the course of many years from Israel, most dramatically in 1948, as part of the catastrophe of national dispossession known to Palestinians as the nakba.

There are also serious questions at this time as to whether the two-state solution is any longer a viable and desirable goal, if it ever was. The question of Palestinian self-determination as the proper foundation for a sustained just peace is more open to debate and reflection in 2014 than ever before. Israel’s expansionism has put the international two-state consensus under a dark storm cloud, and the international community, along with representatives of the Palestinian people must now consider new ways to achieve a just peace for both peoples, which cannot be realized without upholding Palestinian rights.

We believe that a crucial step in this direction is the widespread acknowledgement that Israel has become an outlaw state, and that appropriate adjustments to this reality must be made.

Palestine’s Dilemma: To Go or Not to Go to the International Criminal Court

Ever since this latest Israeli major military operation against Gaza started on July 8, there have been frequent suggestions that Israel is guilty of war crimes, and that Palestine should do its best to activate the International Criminal Court (ICC) on its behalf. The evidence overwhelmingly supports basic Palestinian allegations—Israel is guilty either of aggression in violation of the UN Charter or is in flagrant violation of its obligations as the Occupying Power under the Geneva Convention to protect the civilian population of an Occupied People; Israel seems guilty of using excessive and disproportionate force against a defenseless society in the Gaza Strip; and Israel, among an array of other offenses, seems guilty of committing Crimes Against Humanity in the form of imposing an apartheid regime in the West Bank and through the transfer of population to an occupied territory as it has proceeded with its massive settlement project.

Considering this background of apparent Israeli criminality it would seem a no brainer for the Palestinian Authority to seek the help of the ICC in waging its struggle to win over world public opinion to their struggle. After all, the Palestinians are without military or diplomatic capabilities to oppose Israel, and it is on law and global solidarity must rest their hopes for eventually realizing their rights, particularly the right of self-determination and the right of return. Palestinian demonstrators in the West Bank are demanding that their leaders in the Palestinian Authority adhere to the Rome Statute, and become members of the ICC without further delay. It has become part of the message of Palestinian street politics that the Palestinians are being criminally victimized, and that the Palestinian Authority if it wants to retain the slightest shred of respect as representatives of the Palestinian people must join in this understanding of the Palestinian plight and stop ‘playing nice’ with Israeli authorities.

Such reasoning from a Palestinian perspective is reinforced by the May 8th letter sent by 17 respected human rights NGOs to President Mahmoud Abbas urging Palestine to become a member of the ICC, and act to end Israel’s impunity. This was not a grandstanding gesture dreamed up on the irresponsible political margins of liberal Western society. Among the signatories were such human rights stalwarts as Human Rights Watch, Amnesty International, Al Haq, and the International Commission of Jurists, entities known for their temporizing prudence in relation to the powers that be.

Adding further credence to the idea that the ICC option should be explored was the intense opposition by Israel and United States, ominously threatening the PA with dire consequences if it tried to join the ICC, much less to seek justice through its activating its investigative procedures. The American ambassador to the UN, Samantha Power, herself long ago prominent as a human rights advocate, revealed Washington’s nervous hand when she confessed that the ICC “is something that really poses a profound threat to Israel.” I am not sure that Power would like to live with the idea that because Israel is so vulnerable to mounting a legal challenge that its impunity must be upheld whatever the embarrassment to Washington of doing so. France and Germany have been more circumspect, saying absurdly that recourse to the ICC by Palestine should be avoided because it would disrupt ‘the final status negotiations,’ as if this pseudo-diplomacy was ever of any of value, a chimera if there ever was one, in the elusive quest for a just peace.

In a better world, the PA would not hesitate to invoke the authority of the ICC, but in the world as it is, the decision is not so simple. To begin with, is the question of access, which is limited to states. Back in 2009, the PA tried to adhere to the Rome Statute, which is the treaty governing the ICC, and was rebuffed by the prosecutor who turned the issue over to the Security Council, claiming a lack of authority to determined whether the PA represented a ‘state.’ Subsequently, on November 29th the UN General Assembly overwhelmingly recognized Palestine as ‘a nonmember observer state.’ Luis Moreno–Ocampo who had acted in 2009 for the ICC, and now speaking as the former prosecutor, asserted that in his opinion Palestine would now in view of the General Assembly action qualify as a state enjoying the option of becoming an ICC member. Normally, ICC jurisdiction is limited to crimes committed after the state becomes a member, but there is a provision that enables a declaration to be made accepting jurisdiction for crimes committed at any date in its territory so long as it is after the ICC itself was established in 2002.

Is this enough? Israel has never become a party to the Rome Statute setting up the ICC, and would certainly refuse to cooperate with a prosecutor who sought to investigate war crimes charges with the possible intention of prosecution. In this regard, recourse to ICC might appear to be futile as even if arrest warrants were to be issued by the court, as was done in relation to Qaddafi and his son in 2011, there would be no prospect that the accused Israeli political and military figures would be handed over, and without the presence of such defendants in the court at The Hague, a criminal trial cannot go forward. This illustrates a basic problem with the enforcement of international criminal law. It has been effective only against the losers in wars fought against the interests of the West and, to some extent, against those whose crimes are in countries located in sub-Saharan Africa. This biased form of international criminal law implementation has been the pattern since the first major effort was made after World War II at Nuremberg and Tokyo. Surviving German and Japanese leaders were prosecuted for their crimes while exempting the winners, despite Allied responsibility for the systematic bombing of civilian populations by way of strategic bombing and the American responsibility for dropping the atomic bombs on Hiroshima and Nagasaki.

Unfortunately, up to this time the ICC has not been able to get rid of this legacy of ‘victors’ justice,’ which has harmed its credibility and reputation. All ICC cases so far have involved accused from sub-Saharan African countries. The refusal of the ICC to investigate allegations of war crimes of the aggressors in relation the Iraq War of 2003 is a dramatic confirmation that leading states, especially the United States, possess a geopolitical veto over what the ICC can do. The ICC failure to investigate the crimes of Bush and Blair, as well as their entourage of complicit top officials, vividly shows the operations of double standards. Perhaps, the climate of opinion has evolved to the point where there would be an impulse to investigate the charges against Israel even if procedural obstacles preventing the case from being carried to completion. Any serious attempt to investigate the criminal accountability of Israeli political and military leaders would add legitimacy to the Palestinian struggle, and might have a positive spillover effect on the global solidarity movement and the intensifying BDS campaign.

Yet there are other roadblocks. First of all, the PA would definitely have to be prepared to deal with the wrath of Israel, undoubtedly supported by the United States and more blandly by several European countries. The push back could go in either of two directions: Israel formally annexing most or all of the West Bank, which it seems determined to do in any event, or more likely in the short run, withholding the transfer of funds needed by the PA to support its governmental operations. The U.S. Congress would be certain to follow the lead of Tel Aviv even if the Obama presidency might be more inclined to limit its opposition to a diplomatic slap on the PA wrist as it did recently in reacting to the June formation of the interim unity government, an important step toward reconciling Fatah and Hamas, and overcoming the fragmentation that has hampered Palestinian representation in international venues in recent years.

A second potential obstacle concerns the jurisdictional authority of the ICC, which extends to all war crimes committed on the territory of a treaty member, which means that leaders of Hamas would also likely be investigated and indicted for their reliance on indiscriminate rockets aimed in the direction of Israeli civilian targets.

There is even speculation that given the politics of the ICC such that crimes alleged against Hamas might be exclusively pursued.

If we assume that these obstacles have been considered, and Palestine still wants to go ahead with efforts to activate the investigation of war crimes in Gaza, but also in the rest of occupied Palestine, what then? And assume further, that the ICC reacts responsibly, and gives the bulk of its attention to the allegations directed against Israel, the political actor that controls most aspects of the relationship. There are several major crimes against humanity enumerated in Articles 5-9 of the Rome Statute for which there exists abundant evidence as to make indictment and conviction of Israeli leaders all but inevitable if Palestine uses its privilege to activate an investigation and somehow is able to produce the defendants to face trial: reliance on excessive force, imposing an apartheid regime, collective punishment, population transfers in relations to settlements, maintenance of the separation wall in Palestine.

The underlying criminality of the recent aggression associated with Protective Edge (Israel’s name for its 2014 attack on Gaza) cannot be investigated at this point by the ICC, and this seriously limits its authority. It was only in 2010 that an amendment was adopted by the required 2/3 majority of the 122 treaty members on an agreed definition of aggression, but it will not become operative until 2017. In this respect, there is a big hole in the coverage of war crimes currently under the authority of the ICC.

Despite all these problems, recourse to the ICC remains a valuable trump card in the PA thin deck, and playing it might begin to change the balance of forces bearing on the conflict that has for decades now denied the Palestinian people their basic rights under international law. If this should happen, it would also be a great challenge to and opportunity for the ICC finally to override the geopolitical veto that has so far kept criminal accountability within the tight circle of ‘victors’ justice’ and hence only accorded the peoples of the world a very power-laden and biased experience of justice.

The Russell Tribunal Analyzes Genocide Charges (I was a member of the jury of conscience, and supported the findings reached)

In a special session of the Russell Tribunal held in Brussels on September 24th, Israel’s military operation Protective Edge was critically scrutinized from the perspective of international law, including the core allegation of genocide. The process featured a series of testimonies by legal and weapons experts, health workers, journalists and others most of whom had experienced the 50 days of military assault.

A jury composed of prominent individuals from around the world, known for their moral engagement with issues of the day that concerned their societies, and also the wellbeing of humanity, assessed the evidence with the help of an expert legal team of volunteers that helped with the preparation of the findings and analysis for consideration by the jury, which deliberated and debated all relevant issues of fact and law, above all the question of how to respond to the charge of genocide.

It should be acknowledged that this undertaking was never intended to be a neutral inquiry without any predispositions. It was brought into being because of the enormity of the devastation caused by Protective Edge and the spectacle of horror associated with deploying a high technology weaponry to attack a vulnerable civilian population of Gaza locked into the combat zone that left no place to hide. It also responded to the failures of the international community to do more to stop the carnage, and condemn Israel’s disproportionate uses of force against this essentially helpless and beleaguered civilian population. Israel’s contested military operations targeted many legally forbidden targets, including UN buildings used as shelters, residential neighborhoods, hospitals and clinics, and mosques. In defense of these tactics, Israel claimed that rockets and ammunition were stored in these buildings and that Hamas rocket launchers were deliberately placed in the structures that had been singled out for attack. The evidence presented did not confirm these Israeli claims.

Although the Russell Tribunal proceeded from the presumed sense that Israel was responsible for severe wrongdoing, it made every effort to be scrupulous in the presentation of evidence and the interpretation of applicable international law, and relied on testimony from individuals with established reputations as persons of integrity and conscience. Among the highlights of the testimony were a report on damage to hospitals and clinics given by Dr. Mads Gilbert, a Norwegian doctor serving in a Gaza hospital during the attacks, Mohammed Omer, a widely respected Gazan journalist who daily reported from the combat zone, Max Blumenthal, the prize winning journalist who was in Gaza throughout Protective Edge and analyzed for the jury the overall political design that appeared to explain the civilian targeting patterns, and David Sheen, who reported in agonizing detail on the racist hatred exhibited by prominent Israelis during the period of combat, widely echoed by Israelis in the social media, and never repudiated by the leadership or public in Tel Aviv.

The jury had little difficulty concluding that the pattern of attack, as well as the targeting, amounted to a series of war crimes that were aggravated by the commission of crimes against humanity, most centrally the imposition of a multi-faceted regime of collective punishment upon the entire civilian population of Gaza in flagrant and sustained violation of Article 33 of the Fourth Geneva Convention. A further notable legal finding was the rejection of the central Israel claim of acting in self-defense against rocket attacks directed at Israel.

There were several reasons given for reaching this conclusion: the claim of self-defense does not exist in relation to resistance mounted by an occupied people, and Gaza from the perspective of international law remains occupied due to Israeli persisting effective control despite Israel’s purported disengagement in 2005 (more properly characterized as a military redployment); the rockets fired from Gaza were partly at least in response to prior Israeli unlawful provocations, including the mass detention of several hundred persons loosely associated with Hamas in the West Bank and incitement to violence against Palestinians as revenge for the murder of the three kidnapped Israeli settler children; and finally, the minimal damage done by the rockets, seven civilian deaths over the entire period, is too small a security threat to qualify as “an armed attack” as is required by the UN Charter to uphold a claim of self-defense. At the same time, despite these mitigating factors, the jury did not doubt the unlawfulness of firing of numerous rockets into Israel that were incapable of distinguishing between military and civilian targets. This form of unlawful resistance was attributed to both Hamas and independent Palestinian militias operating within the Gaza Strip.

A focus of concern in the jury deliberations before and after the proceedings themselves was how to address the allegation of ‘genocide,’ which has been described as ‘the crimes of crimes.’ The jury was sensitive to the differences between the journalistic and political uses of the word ‘genocide’ to describe various forms of collective violence directed at ethnic and religious minorities, and the more demanding legal definition of genocide that requires compelling and unambiguous evidence of a specific ‘intent to destroy’.

The testimony made this issue complex and sensitive. It produced a consensus on the jury that the evidence of genocide was sufficient to make it appropriate and responsible to give careful consideration as to whether the crime of genocide had actually been committed by Israel in the course of carrying out Protective Edge. This was itself an acknowledgement that there was a genocidal atmosphere in Israel in which high officials made statements supporting the destruction, elimination, and subjugation of Gazans as a people, and such inflammatory assertions were at no time repudiated by the Netanyahu leadership or subject to criminal investigation, let alone any legal proceedings. Furthermore, the sustained bombardment of Gaza under circumstances where the population had no opportunity to leave or to seek sanctuary within the Gaza Strip lent further credibility to the charge of genocide. The fact that Protective Edge was the third large-scale, sustained military assault on this unlawfully blockaded, impoverished, and endangered population, also formed part of the larger genocidal context.

Further in the background, yet perhaps most relevant consideration of all, Israel failed to exhaust diplomatic remedies before its recourse to force, as required by international law and the UN Charter. Israel had the option of lifting the blockade and exploring the prospects for long-term arrangements for peaceful co-existence that Hamas had proposed numerous times in recent years. Such initiatives were spurned by Israel on the ground that it would not

deal with a terrorist organization.

Despite the incriminating weight of these factors, there were legal doubts as to the crime of genocide. The political and military leaders of Israel never explicitly endorsed the pursuit of genocidal goals, and purported to seek a ceasefire during the military campaign. There was absent a clear official expression of intent to commit genocide as distinct from the intensification of the regime of collective punishment that was convincingly documented. The presence of genocidalbehavior and language even if used in government circles is not by itself sufficient to conclude that Protective Edge, despite its scale and fury, amounted to the commission of the crime of genocide.

What the jury did agree upon, however, was that Israeli citizens, including officials, appear to have been guilty in several instances of the separate crime of Incitement to Genocide that is specified in Article 3(c) of the Genocide Convention. It also agreed that the additional duty of Israel and others, especially the United States and Europe, to act to prevent genocide was definitely engaged by Israeli behavior. In this regard the Tribunal is sending an urgent message of warning to Israel and an appeal to the UN and the international community to uphold the Genocide Convention, and act to prevent any further behavior by Israel that would cross the line, and satisfy the difficult burden of proof that must be met if the conclusion is to be reached that the crime of genocide is being committed. At some point, the accumulation of genocidal acts will be reasonably understood as satisfying the high evidentiary bar that must be reached so as to conclude that Israel had committed genocide.

Many will react to this assessment of Protective Edge as lacking legal authority and dismiss the finding of the jury as merely recording the predictable views of a biased ‘kangaroo court.’ Such allegations have been directed at the Russell Tribunal ever since its establishment in the mid-1960s by the great English philosopher, Bertrand Russell, in the midst of the Vietnam War. These first sessions of the Russell Tribunal similarly assessed charges of war crimes associated with U.S. tactics in Vietnam, and in Russell’s words, represented a stand of citizens of conscience ‘against the crime of silence.’ This latest venture of the tribunal has a similar mission in relation to Israel’s actions in Gaza, although less against silence than the crime of indifference.

It is my view that such tribunals, created almost always in exceptional circumstances of defiance of the most elemental constraints of international law, make crucial contributions to public awareness in situations of moral and legal outrage where geopolitical realities preclude established institutional procedures such as recourse to the International Criminal Court and the UN Security Council and General Assembly. That is, these kind of self-constituted tribunals only come into being when two conditions exist: first, a circumstance of extreme and sustained violation of fundamental norms of morality and international law and secondly, a political setting in which governmental procedures and UN procedures are inoperative.

When the interests of the West are at stake, as in the Ukraine, there is no need to activate unofficial international law initiatives through the agency of civil society. However in circumstances involving Israel and Palestine, with the United States Government and most of Western Europe standing fully behind whatever Israel chooses to do, the need for a legal and moral accounting is particularly compelling even if the prospects for accountability are virtually nil. The long suffering people of Gaza have endured three criminal assaults in the past six years, and it has left virtually the whole of the population, especially young children, traumatized by the experience of such sustained military operations.

It should be acknowledged that the UN Human Rights Council has appointed a Commission of Inquiry to investigate allegations of war crimes associated with Protective Edge, but its report is not due for several months, Israel has indicated its unwillingness to cooperate with this official UN initiative, and it is almost certain that any findings of criminality and related recommendations will not be implemented due to the exercise of a geopolitical veto by the United States, and perhaps, other members of the Security Council. In view of these circumstances, the argument for convening the Russell Tribunal remains strong, especially if one recalls the fate of the Goldstone Report prepared in analogous conditions after the 2008-09 Israeli attacks on Gaza known as Operation Cast Lead.

The Russell Tribunal is filling a normative vacuum in the world. It does not pretend to be a court. In fact, among its recommendations is a call on the Palestinian Authority to join the International Criminal Court, and present Palestinian grievances to the authorities in The Hague for their investigation and possible indictments. Even then the realities of the world are such that prosecution will be impossible as Israel is not a party to the treaty establishing the ICC and would certainly refuse to honor any arrest warrants issued in The Hague, and no trial could be held without the physical presence of those accused. The value of an ICC proceeding would be symbolic and psychological, which in a legitimacy war would amount to a major ‘battlefield’ victory. It is notable that Hamas has joined in urging recourse to the ICC despite facing the distinct possibility that allegations against its launch of rockets would also be investigated and its officials indicted for its alleged war crimes.

As with the Nuremberg Judgment that documented the criminality of the Nazi experience, the process was flawed, especially by the exclusion of any consideration of the crimes committed by the victors in World War II, the Russell Tribunal can be criticized as one-sided in its undertaking. At the same time it seems virtually certain that on balance this assessment of Israel’s behavior toward the people of Gaza will be viewed as supportive of the long struggle to make the rule of law applicable to the strong as well as the weak. It is also reflective in the disparity of responsibility for the harm done by the two sides.

I recall some illuminating words of Edward Said uttered in the course of an interview with Bruce Robbins, published in Social Text (1998): “The major task of the American or the Palestinian or the Israeli intellectual of the left is to reveal the disparity between the so-called two sides, which appear to be rhetorically and ideologically to be in perfect balance, but are not in fact. To reveal that there is an oppressed and an oppressor, a victim and a victimizer, and unless we recognize that, we’re nowhere.”

New Realities in Israel-Palestine Struggle After Protective Edge

Although UN speeches are rarely signifiers of political realities, the

presentations by Mahmoud Abbas on behalf of the Palestinian Authority and the Palestinian Liberation Organization and of Benjamin Netanyahu, Prime Minister of Israel, contained some elements worth noticing. These speeches came as the conflict enters yet another stage, underscored by the recent vicious attack on Gaza that persisted for 50 days, but also by some fundamental developments that set the stage for Protective Edge. It is something of a weathervane of the global view of the conflict that when Abbas spoke he received thunderous applause and a standing ovation, while Netanyahu addressed a solemn half empty UN chamber.

Netanyahu: Anxieties and Opportunities

Above all, the growing indication that the Israeli leadership believes that it can impose a unilateral solution by incorporating all or most of the West Bank within Israel as well as further implementing policies of ethnic cleansing in East Jerusalem. As such there is no further need to engage in the diplomatic charades initiated by the Oslo peace process in 1993. That phase seems over, having been helpful to the expansionist designs of Israel and harmful to those on the Palestinian side ready as early as 1988 to settle for a sovereign state within the 1967 borders, the supposed international consensus view of how to end the conflict. The last attempt to engage in Oslo diplomacy was muscled into being by the strongarm tactics of John Kerry, the American Secretary of State. Long before their collapse in April of this year both Israel and the Palestinian Authority anticipated such an ending, Israel by design, the PA by resignation mingled with frustration.

The regional context also brought about some new political maneuvering that

became evident during the Israeli assault on Gaza, and its acknowledgement was the sole innovative feature of Netanyahu’s UN speech. The negative development from Netanyahu’s perspective was his anxiety that pressure on Iran would be relaxed in the context of an agreement about the Iranian nuclear program that had acquired added political relevance in connection with Washington’s effort to cobble together the strongest possible coalition to fight ISIS. This turn in Western thinking clearly bothered Netanyahu who insisted that the more moderate face of the Iranian government since Rouhani’s election as president in 2013 lacked substantive reality, and was amounted to nothing more than toned down language in diplomatic setting. To underscore this hostility to any rapprochement, he told the UN once again that Iran was the most dangerous state in the world. Such a view is rather absurd, overlooking such obvious candidates as the United States and his own Israel as much more deserving of this dubious honor.

In his speech, Netanyahu was understandably enthused by the regional shifts in the Arab world toward an acknowledgement of ‘shared interests’ with Israel in the defeat of militant Islam in all of its manifestations, which of course included Hamas (identified by Netanyahu as a branch on the same ‘poisonous tree’ as ISIS.’). What has become evident in recent years is that Saudi Arabia, and some of the Gulf countries, are far more threatened by political Islam that aspires to power by democratic means and on the basis of its grassroots strength than it is either by Israel’s military dominance in the region or even its bitter sectarian rivalry throughout the region with Shiite Iran. This Gulf priority was clearly expressed by siding with the 2013 military coup in Egypt despite the massacres perpetrated against Sunni Muslim followers of the Muslim Brotherhood after the Morsi led government was overthrown. This surprising new alignment was vividly exhibited during Protective Edge. It was a dramatic rupture from the past to have Saudi Arabia act behind the scenes as a virtual cheerleader for Israel’s assault on Hamas-governed Gaza.

Netanyahu drew an interesting conclusion from these shifts in Arab orientations. He suggested that now the path to peace in the region was to be approached first through normalization and extensive economic cooperation by Israel with the Arab countries, and after that, perhaps, seeking a new initiative engaging the Palestinians. This reversed the previously unchallenged views that normalization with Arab neighbors could only occur after the underlying conflict with the Palestinians had been resolved.

Abbas: UN Membership for Palestine?

On the Palestinian side, Mahmoud Abbas expressed a different view of the situation. He placed great stress on the extent to which the Israeli intensive settlement process had destroyed any prospect of resolving the conflict through diplomacy. Abbas seemed finally to recognize, what had been long evident to many Palestinians, that participating in Washington’s peace process operated mainly as a facilitator of Israeli settlement building plans, and was contrary to Palestine’s interest. He didn’t repudiate the Oslo approach altogether, presumably not to offend the U.S. Government, but he did at least insist that negotiations could only be resumed if Israel at long last unconditionally stopped further expansions of the settlements. This was surely a demand that the Israeli government would reject if it bothered to respond at all.

Abbas’ diplomacy moved in new directions: he submitted a formal request to the Secretary General to forward to the Security Council for action Palestine’s request for full membership in the Organization. Such a move comes after a failed attempt a few years ago to gain Security Council endorsement that Palestine was a state, a result finally achieved by an overwhelming General Assembly vote on Nov. 29, 2012 making Palestine a non-member observer state, with a status similar to that of the Vatican. This move undoubtedly irritates Washington as it will undoubtedly force the U.S. to use its veto as the other members of the Security Council are expected either to vote in favor of according membership to Palestine or to abstain when the vote is called.

Genocide?

More important than this bid for membership in the UN, was the willingness of Abbas to associate the Palestinian national struggle with a heightened discourse of denunciation. For the first time Abbas raised the specter of genocide: Israel was accused of a “new war of genocide perpetrated against the Palestinian people.” And in doing so, affirmed the Palestinian right of resistance against Israel’s occupation, as well as made an allegation that resonates with the global Palestinian solidarity movement.

What may be most significant here is that the formal authority structure representing the Palestinian people on the global stage seemed to be in temporary sync with pro-Palestinian civil society activists around the world. For instance, the Russell Tribunal(RT) at an Extraordinary Session held in Brussels on September 24 focused on charges of genocide directed against Israel in connection with Protective Edge. With the help of an expert legal team, and a jury composed of globally prominent legal, political, and cultural voices of conscience, RT found Israel guilty of the distinct crime of ‘incitement to genocide’ under the 1948 Genocide Convention as well as aggravated crimes against humanity. The testimony at Brussels established strong circumstantial evidence of a genocidal intent on Israel’s part. Nevertheless, this evidence failed to convince the jury that Israel’s leaders possessed the specific intent required to establish the crime of genocide. On incitement, to genocide, the evidence available did support the jury finding that the crime had been committed.

For genocide to enter into the discourse of the Palestinian movement is a bold development that responded to the ravaging of Palestinian civilian society during this third of Israel’s orchestrated massacres against the people of Gaza in the last six years. It is not only that more than 70% of the Palestinian casualties were civilians. It needs to be understood that the entire Gazan population was locked into the combat zone for the entirety of the 50 day onslaught. As a result the civilian population was denied the possibility of escaping the war zone by crossing the border to become refugees, usually the option of desperate last resort in conflicts of this character. As is currently evident in Syria and Iraq, tens of thousands have been seeking sanctuary by leaving the country. It is this most minimal form of humanitarian assistance that has been denied to all Gazans ever since Hamas started governing in mid-2007.

What Now?

These UN speeches, notable for several reasons, avoided mentioning the most dramatic development: the new phase of the conflict. Israel rather overtly is moving toward a one-state solution that will involve incorporating the West Bank and consolidating control over East Jerusalem. Palestine is combining its state-building project on the West Bank with the realization that the political energy of the national movement has shifted to a combination of civil society activism and Hamas resilience and resistance. Whether this new phase will bring the two peoples any closer to a sustainable peace with justice seems unlikely from the vantage point of the present.

Questioning Sweden’s ‘Bold’ Diplomatic Initiative

It was a welcome move in some respects. The new center-left Swedish Prime Minister, Stefan Lofven, in his inaugural speech to Parliament indicated on October 3rd the intention of the Swedish government to recognize Palestinian statehood. He explained that such a move mentioned in the platform of his party is in accord with promoting a two-state solution, and more significantly, that is to be “negotiated in accordance with international law.” The call for adherence to international law in future diplomacy is actually more of a step forward than is the announced intention of future recognition, which has so far received all the media attention and incurred the wrath of Tel Aviv. To bring international law into future negotiations would amount to a radical modication of the ‘peace process’ that came into being with the Oslo Declaration of Principles in 1993. The Israel/United States view was to allow any agreements between the parties to arise from a bargaining process, which is a shorthand for acknowledging the primacy of power, taking account of ‘facts on the ground’ (that is, the unlawful settlements) and diplomatic leverage (allowing the United States to fake the role of ‘honest broker’ while at the same time making sure that Israel’s interests are protected).

I suspect that this hopeful language suggesting the relevance of international law was inserted without any awareness of its importance or relevance. Such an interpretation is in line with Swedish official explanations of their initiative as a way of helping ‘moderate’ Palestinian leaders gain control of diplomacy, thereby facilitating the eventual goal of mutual coexistence based on two states. It was presumed by Stockholm without any supportive reasoning, and against the weight of evidence and experience, that a Palestine state could emerge from a reinvigorated diplomacy. No mention was made of the settlements, separation wall, road network that have cut so deeply into the Palestinian remnant, which as of the 1967 borders was already 22% of historic Palestine, and less than half of what the UN partition plan had offered the Palestinians in 1947, which at the time seemed unfair and inconsistent with Palestinian rights under international law.

The United States Government spokesperson, Jan Paski, was careful to confirm the Oslo approach adopted by Washington that has been so harmful to Palestinian prospects for a viable state: “We certainly support Palestinian statehood, but it can come only through a negotiated outcome, a resolution of final status issues and mutual recognition by both parties.” Note the pointed absence of any reference to international law. Beyond this, there is less and less reason to suppose that the Israeli government supports a process that leads to Palestinian statehood in any meaningful sense, although Netanyahu repeats in international settings the sterile mantra of saying that any such results can only come from direct negotiations between the parties, and he adds the Swedish initiative if carried out, is declared to be an obstacle to such an outcome. So as not to arouse hopes, Netanyahu adds that no agreement will be reached that does not protect the national interests of Israel and ensure the security of Israeli citizens. When he speaks at home in Hebrew the prospect of a Palestinian state becomes as remote as the establishment of a world government.

Unsurprisingly, the head of Israel’s opposition Labor Party, Isaac Herzog, was active in reinforcing Netanyahu’s objection to Sweden’s proposed course of action. Herzog in conversation with Lofven sought to dissuade Sweden from acting ‘unilaterally,’ suggesting that such a move was likely to produce undisclosed ‘undesirable consequences.’ So much for the Israeli ‘peace camp’ that now seems content to act as errand boy for state policy as led by the right-wing Likud.

The Palestinian Authority, short on good news since the Gaza attacks, at its highest levels (Abbas, Erakat) greeted the Swedish move as ‘remarkable and courageous,’ as well as ‘great.’ The PA leadership even suggested that recognition of Palestinian statehood could build pressure for a resumption of talks on a two-state solution as if that would be beneficial for Palestine. Such sentiments turn a blind eye toward the Oslo record of failure from a Palestinian point of view, and quite the opposite for Israel.

What is the value of the Swedish proposed step, assuming that it takes place? Israel and the United States seemed poised to use full court pressure to persuade Sweden to delay indefinitely making the move, and Sweden has retreated to the extent that it has reassured the world that it is not planning to act ‘tomorrow morning’ and hopes to listen to the views of all interested governments and engage in dialogue before moving forward. At the same time, the British Parliament is set to vote on October 13 on a non-binding resolution urging recognition by Britain of Palestinian statehood.

Even proposing recognition of Palestinian statehood is definitely a psychological boost for the Palestinian Authority, but it changes nothing on the ground, and likely makes Israel take some defiant steps such as provocatively issuing permits for additional housing units in the settlements, which it did in 2012 as retaliation for Palestine’s successful bid to be recognized by the UN General Assembly as a non-member observer state (similar to the status enjoyed by the Vatican). Recognition also gives Palestine potential access to the International Criminal Court, which again worries Israel as it should, although the Palestinian Authority has so far held back from seeking to become a party to the ICC, and by so doing gain the capacity to request the prosecutor to investigate various allegations of Israeli war crimes, including the settlements.

In international law diplomatic recognition by states has been traditionally viewed as largely a matter of discretion. The United States withheld recognition from mainland China for decades after it had consolidated its governmental control over the territory and its population. Palestine has been long recognized by at least 125 states, and enjoys diplomatic relations as if a state. UN membership presupposes statehood, but it is also highly politicized and subject to the veto by any permanent member of the Security Council. Indications are that, if necessary, the United States will stand alone in using its veto to block Palestine from becoming a member.

But why does Israel care so much as nothing changes on the ground? There would seem to be three reasons, none very persuasive. Firstly, since Palestine badly wants to be a sovereign state and a UN member, it would make further concessions to Israel to obtain such a status in the event of further negotiations. Secondly, Israel seems eager to have the formal capacity to deny Palestinian statehood in a full sense so as to allow for the future likely incorporation the West Bank into Israel when the opportune moment arrives. This is a course of action favored by the recently elected Israeli president, Reuven Rivlin, who offers Palestinians a supposedly benevolent ‘economic peace’ in exchange if they swallow their political pride. Thirdly, recognition might give the Palestinian Authority more leverage at the UN and the ICC, and self-esteem in Palestinian circles, especially if other European Union members to follow the Swedish example. At some point down the line Israel’s prolonged occupation of Palestine would under these conditions come under increasing legal, moral, and political fire.

Yet from the perspective of the Palestinian people as distinct from the Palestinian Authority, does it make sense at this stage in their struggle to continue to act as if the two-state solution could still bring peace? Israel’s feverish settlement activity of recent years seems to be a clear message that a viable sovereign Palestinian state is no longer in the cards. In fact, Sweden seems to be playing the Oslo game after the game has ended for all practical purposes.

In other words, if Sweden’s act of recognition had been linked to Oslo’s failure it would be pointing the way toward a constructive turn in peace diplomacy, but to justify it as a step toward the two-state solution achieved by direct negotiations of the sort that has failed repeatedly for more than 20 years seems an ill-considered expression of political innocence on the part of the inexperienced new leadership in Stockholm, a gesture for peace undoubtedly meant in good faith, but seemingly without any awareness that the sick patient died years ago.

The UK House of Commons Supports Diplomatic Recognition of Palestine

On October 13 the House of Commons by an overwhelming vote of 274-12 urged the British government to extend diplomatic recognition to Palestine.

At first glance, it would seem a rather meaningless gesture. It is a non-binding resolution, and Prime Minister David Cameron has already declared that this expression of parliamentary opinion will have no effect whatever on existing government policy. So far Britain along with the states in Western Europe adhere to Israel’s stubborn insistence, echoed by Washington, that Palestinian statehood can only be established through a solution to the conflict negotiated by the parties.

Even if the British vote was binding, why should it be seen as a dramatic move in Palestine’s favor? After all, Palestine has already been accorded recognition by 134 states since Yasir Arafat declared the existence of a Palestinian state within 1967 borders back in 1988.

Such downgrading of the significance of what took place is also part of the Israel tactical response. Its ambassador in London now declining even to comment on the decision after earlier indicating extreme disapproval. Before the vote Israeli leaders used their many levers of influence to discourage the vote. Netanyahu even insisted that such a step would seriously diminish prospects for resumed negotiations and would harm peace prospects. Afterwards, the Israeli tone changed, calling the vote meaningless and devoid of importance.

In actuality, the UK initiative is an important symbolic victory for the Palestinians. Until the recently elected Swedish government indicated its intention to recognize Palestinian at some future undesignated time, no Western European government had broken ranks on the Oslo approach as

interpreted by Israel and the United States. It is this approach that has put a straightjacket on diplomacy, requiring any progress toward a solution to be exclusively through direct negotiations in which the U.S. acts as intermediary.

At stake, then, is not only the momentum building for European countries to extend recognition to Palestine, but also a belated admission that this Oslo approach after more than 20 years of futility should no longer be respected as the consensus foundation of Israel-Palestine conflict resolution. The UK action needs to be joined with the recent diplomacy of the Palestinian Authority, first the Fatah/Hamas agreement of April to form a unity government, and even more so, the resolution to be submitted to the Security Council on behalf of the Palestinian Authority that calls for Israeli withdrawal to 1967 borders, including East Jerusalem, no later than November 2016. It is expected that the U.S. will veto this resolution if it is unable to mount enough pressure to prevent nine SC members from voting affirmatively. Such an initiative by Ramallah is further signals that the PA is no longer willing to play the waiting game that has given Israel ample time for settlement expansion and ethnic cleansing in East Jerusalem past points of no return.

In Mahmoud Abbas’ speech of September 26th to the General Assembly he clearly indicated that he was refusing to cooperate with these diplomatic maneuvers facilitated by the Oslo framework. Responding to Palestinian pressures from below, Abbas left no doubt that he would not pretend that he had ‘a partner for peace,’ thereby turning the tables on Tel Aviv. He signaled this clearly when he described Israel’s 50-day military operation against Gaza this past summer as “a genocidal war.” The G-word was bound to elicit an angry Israeli response, which Netanyahu provided a few days later in the same venue, calling Abbas’ speech “shameless.”

There still remains a lingering ambiguity in these developments suggesting we have not yet arrived at a post-Oslo phase of diplomacy. The UK resolution accepted an amendment stating that its purpose was “as a contribution to securing a negotiated two-state solution.” The former British Foreign Secretary, Jack Straw, elaborated on this, suggesting that was being done was to exert additional pressure on the parties to get on with negotiating a two-state outcome. This tail wagging the dog is a regression, sustaining the illusion that Israel, whatever the context, is at all willing at this stage to allow an independent sovereign Palestinian state to be established within 1967 borders, even if these are slightly modified.

Since the latest Gaza war there have been two developments of lasting significance : first, the inter-governmental diplomacy is moving away from the Oslo approach, and Western Europe is beginning to fill the diplomatic vacuum created by the April collapse of the Kerry round of talks between Israel and the Palestinian Authority. And Secondly, civil society nonviolent militancy and political leadership is beginning to occupy center stage in Palestinian hopes and dreams, particularly taking the form of the growing BDS campaign, but also visible in the refusal of Oakland, California workers to unload an Israeli cargo ship.

Conclusion

In the aftermath of Operation Protective Edge (the IDF code name for the military operation) several developments took place that add up to a new

reality in relation to underlying national struggle of the Palestinian people.

The essence of this new reality is a growing convergence between the mobilization of global civil society on behalf of Palestinian rights under international law and a diplomatic shift in Europe that partially acknowledges the collapse of the Oslo approach to a resolution of the conflict.

This Oslo approach has depended on the following characteristics: (1) the exclusion of international law from assessing the respective rights of the parties, reducing the peace process to a bargaining relationship in which relative power is the decisive factor; (2) situating the United States as entrusted with the role of intermediary between the parties despite its highly partisan alignment with Israel, by far the stronger side in the negotiating process; (3) the insistence that only through this negotiating dynamic can peace emerge in the form of a two-state solution.

Each of these elements is now growing weaker as the final group of pieces in this compilation tried to demonstrate. International law, especially international criminal law, is now an integral part of the political discourse, and as the Brussels Session of the Russell Tribunal pointed out it has become unavoidable to address charges of ‘genocide’ and ‘apartheid’ in relation to Israeli occupation policies. Beyond this the countries in Western Europe, and even to a slight rhetorical extent, the United States, are appalled by Israel’s continued expansion of its unlawful settlements, having announced the provocative approval of some 14,000 new housing units in East Jerusalem and the West Bank settlements in the period since the Gaza ceasefire was announced.

As the Swedish and UK moves toward the recognition of Palestinian statehood suggests, the Oslo approach no longer commands respect from leading governments in Western Europe. Although these moves are symbolic, and do

not alter the behavioral realities of occupation and exile, such diplomacy reinforces the legitimacy of such civil society actions such as the growing BDS (boycott, divestment, and sanctions) campaign. In the United States demonstrators in Oakland California prevented the unloading of two Israeli container ships bearing witness to the shift in the political climate even in the country whose government steadfastly averts its gaze from Israeli wrongdoing.

There is some ambiguity present in relation to the two-state solution. Sweden and Britain coupled their diplomatic initiatives with a reaffirmation of their support for a two-state solution resulting from direct negotiations between the parties. Their initiatives were avowedly undertaken to exert pressure to move in this direction with greater determination or face the prospect that a Palestinian state will claim sovereignty on a more unilateral basis. Among pro-Palestinian civil society activists there is a much greater openness to considering one-state alternatives, but a general consensus is present that such a question should be left for resolution to the authentic representatives of the Palestinian people.

There is a growing uncertainty as to the identity of these authentic representatives. It has been assumed to be the Palestinian Liberation Organization, the umbrella organization that has long existed and given rise to the Fatah-dominated Palestinian Authority headed by Mahmoud Abbas. Hamas has acted outside this framework, but the moves in April toward the formation of a technocratic ‘unity government’ suggest some effort to overcome the fracturing of Palestinian leadership. There is also an increasing feeling that the Palestinian civil society leadership, although without any electoral mandate, is giving a more authentic voice to the aspirations of the Palestinian people than its formal governmental leaders. Such questions of Palestinian leadership and representation must be resolved by Palestinians acting among themselves.

Can we be hopeful about the Palestinian future, which would presuppose a just and sustainable peace that provides security to both peoples and ends the ordeal of Palestinian dispossession? It is helpful to recall the anti-apartheid campaign against racist South Africa that seemed to face insurmountable obstacles until it prevailed. Although the situation is distinctly different, Gandhi’s familiar words are apropos: “First they ignore you, then they laugh at you, then they fight you, and then you win.” If the political pressure from above via the new diplomatic wind that is blowing in a Palestinian direction joins with the civil society initiatives from below, at some point the Israeli leadership is likely quietly to recalculate their interests, and could come forth with the realization that the days of Zionist maximalism are coming to an end and the security of the Jewish people in Israel will only be achieved after Palestinian self-determination is achieved.

[*]The compilation below represents writings in recent weeks, many of which were published in online in AlJazeera English, AlJazeera America, The Nation,

and Middle East Eye; I acknowledge and thank each of these important media

There is no doubt that Hamas has exhibited extraordinary resilience under the most difficult of conditions that have bedeviled its period of political leadership in the Gaza Strip that started in 2007. It also seems clear as persuasively argued by Sandy Tolan in a valuable Common Dreams article [Tolan, “Blown Chances in Gaza: Israel & U.S. Miss Many Chances to Avoid War, Aug. 13, 2014] that Hamas pursued multiple initiatives starting in 2006 designed to achieve calm and quiet in its relations with Israel, and that these initiatives, including back channel reassurance about peaceful intentions, were rebuffed without even being acknowledged by either Israel or the United States. It also seems the case that Israel acted to provoke the three most sustained military onslaughts directed at Gaza since 2008, and in each has relied on disproportionate force, inflicted numerous civilian casualties, and acted in a manner defiant of international humanitarian law. For these reasons Israel deserves to be treated as an ‘outlaw state’ for reasons set forth by Akbar Ganji and I argued in a two-part article appearing in the online pages of AlJazeera English [“The Outlaw State of Israel,” Aug. 20,21, 2014].

And yet Hamas also has some explaining to do if it wishes to be more widely accepted throughout the world as entitled to full respect as a legitimate political actor. This respect is crucial in the ongoing politics of enabling Hamas to play a major role in representing the national movement of the Palestinian people in all diplomatic settings. The announcement of a unity government between Fatah and Hamas was an important legitimating step in this direction. The following hard questions deserve convincing responses from those advocating the further legitimation of Hamas:

Why provide Israel with an argument for its massive military assaults by firing thousands of rockets that do minimal damage and give Israel a credible argument for recourse to defensive force applied disproportionately and causing intolerable levels of suffering for the people of Gaza? Are there not alternatives and better ways to sustain the spirit and substance of Palestinian resistance?

Is it not overdue to modify the language, tone, and substance of the Hamas Charter or Covenant of 1988 so as to reconcile such a foundational document with the more moderate diplomatic postures articulated by Hamas leaders in recent years? Why leave this gap that Israel can exploit to justify its refusal to deal with Hamas or respond to its frequently articulated political proposal of long-term peaceful co-existence? Either Hamas stands by this exterminist language or it must supersede it by a new formulation of goals and vision.

Can Hamas expect to be viewed favorably by public opinion and in diplomatic circles when it engages in grisly forms of revolutionary justice when dealing with Palestinians suspected of collaborating with Israel? As many as 21 Palestinians were reported to have been hung in prominent public places in Gaza on August 22nd on charges of collaborating with the enemy. Similar issues of summary execution arose in the context of the earlier Israeli aggressions in 2008-09 and 2012, and such behavior was then widely condemned by Palestinian human rights groups and many others in Gaza. Admittedly, the problems posed by collaborators is a great security threat given the realities of the blockade and vulnerability of Gaza, but Hamas jeopardizes its reputation and claim to be a legitimate political actor by so behaving, and to some extent nullifies the strong effort of its leaders in recent years to project a moderate ethically responsible image by word and deed. Putting the question differently, ‘why is it necessary?’ Many of us are aware that Israel uses all manner of ‘dirty tricks’ to induce collaboration when it recruits informers in Gaza, which should be the basis of empathy on the part of Hamas for compromised individuals or at the very least cause the wheels of justice to await the outcome of an evidence-based trial before imposing death sentences, and then not doing so in such dehumanizing and degrading manner?

I do not raise here the accusations associated with charges and counter-charges relating to the use of ‘human shields’ in the course of the fighting. The evidence is cloudy as to such behavior, and as to whether it occurrence reflects policy, or is a deviation therefrom. There are difficult issues of applying international criminal law in circumstances of asymmetric urban warfare, and an overall caveat about striking a self-righteous position with respect to the tactics used by either side is that military expediency has consistently prevailed over the constraints of law and morality throughout the history of warfare. A reading of Kurt Vonnegut’s Slaughterhouse-Five (1969) or a consideration of strategic bombing of German and Japanese cities during World War II, including the use of atomic bombs to incinerate Hiroshima and Nagasaki despite their irrelevance to the outcome of the war and the horrendous impact on the large civilian populations.

In the last several years I have received much criticism, and worse, for urging the adoption of a positive attitude toward the Hamas effort to be treated as a political actor with legitimate grievances, and by observing that the behavior of Hamas in relation to Israel has been of a generally defensive nature in the face of constant harassment, unacceptable abuse, and an extreme campaign of delegitimation, even criminalization. It remains my judgment on the basis of evidence available to me that Hamas has sought a quiet border with Israel, and that Israel has been principally responsible for the violence, and beyond this, for virtually all of the death and destruction on the Gaza side of the border that has occurred in this period. It is also encouraging to take note of Hamas agreement to seek recourse to the International Criminal Court in pressing Palestinian grievances against Israel even though if an investigation of allegations goes forward it will include looking into contested aspects of Hamas’ behavior from the perspective of international criminal law.

The efforts of the international community and the UN to impose solutions, up through the failed Kerry initiative that collapsed last April, have not contributed to peace and justice either between Israel and Palestine, or in the wider region. Whether wittingly or not, the international diplomacy of the West has produced dispossession, violence, and seemingly irreconcilable conflict with disastrous and tragic consequences for the indigenous population of Palestine ever since the end of World War I.

[Prefatory Note: my post below, an earlier version of which was published in AlJazeera English as an opinion piece. It was written before I had the opportunity to read an illuminating assessment of the regional and global turmoil that culminated for now in the massacre carried out by Israeli armed forces in Gaza. I highly recommend “The Tragedy of Great Power: The Massacre of Gaza and the Inevitable Failure of the Arab Spring” written by the learned Islamic jurist and scholar, Khaled Abou El Fadl, a distinguished professor at UCLA School of Law, with the link to the article below:

What makes Professor El Fadl profound essay particularly valuable is his ability to fit the regional pieces together in a convincing manner, showing how and why governments that rule in Saudi Arabia and the UAE, encouraged the overthrow of Egypt’s elected government headed by Mohamed Morsi in mid-2013 and more recently encouraged Israel to destroy Hamas. He also shows that Hamas is not accurately perceived as a byproduct of the Egyptian Muslim Brotherhood, but has its own “very distinct pedagogies, objectives and methodologies.” In depicting the forces of resistance and transformation as opposed to the geopolitics of counterrevolution as constituting the core struggle taking place throughout the region it becomes clear why the alignments in the Middle East are assuming their current configurations.

It is telling and provocative for Professor El Fadl to situate the Palestinian Liberation Organization (and by implication, the Palestinian Authority) as de facto allies of Sisi’s Egypt, Saudi Arabia, and the UAE as well as being existential partners of the United States and Israel in subjugating the region to Western goals. What has developed further since the end of the Cold War rivalry that long dominated the region should be considered a geopolitical protection racket that gained political salience in the aftermath of the Arab Spring. The upheavals of 2011 shook the foundations of the old order, and led to renewals throughout the region of Faustian Bargains by which various authoritarian regimes receive protection, including help with the destruction of any political actor, whether Islamic or not, that dares to challenge this established order composed of ultra-rich native elites claiming dynastic privileges conferred by colonial powers then seeking native collaborators to manage exploited and oppressed populations. While these elites appease Israel, the masses in the same political space remain passionately and symbolically dedicated to the Palestinian struggle as became evident in the September 9, 2011 attack by several thousand Egyptians on the Israeli Embassy shortly while the heroic memories of the overthrow of Hosni Mubarak were still fresh.]

Of all the complexities surrounding the reaction of the world to the horrifying spectacle of Israel’s severe criminality in Gaza none is more perplexing than the complicity of most governments throughout the Arab world. What makes their political posture particularly bewildering is the degree of ethnic, religious, cultural, and historical commonality that creates such close ties of identity among the peoples of the region. And no single issue has been as unifying over the decades for these people than has their long intensely felt opposition to the injustice, suffering, and exploitation that the Palestinian people have endured for the past century as a result of the encroachments of the Zionist movement on their lands. It should be recalled that at earlier stages of the Palestinian ordeal, the governments of the neighboring Arab countries did exhibit strong, if ineffectual, solidarity with the Palestinian struggle. Several Arab states jointly attacked Israel, initially in 1948 to prevent the establishment of Israel, and later in the failed wars of 1967 and 1973 that challenged Israel’s existence. These defeats together with Egypt’s accommodation via the peace treaty of 1979 was a defining moment at which the Arab neighbors of Israel abandoned the Palestinians politically, but not yet diplomatically or economically. At this time any tangible form solidarity at the level of Arab governments is now a distant and ironic memory, and has been supplanted in the main by active hostility to Palestinian aspirations and implicit sympathy with, or at least acquiescence in Israel’s regional ambitions in conjunction with U.S. grand strategy in the region .

Some official formal hostility to Israel and sympathy for the Palestinian struggle persists at rhetorical levels, but rings hollow. It is true that many Arab countries to this day refuse entry to anyone with an Israeli entry or exit stamp in their passport. Anwar Sadat’s assassination in 1981 was widely interpreted at the time as a populist response in Egypt to his willingness to sign a peace treaty with Israel without simultaneously securing justice for the Palestinians, thereby crossing what was then a red line of betrayal. It was observed by the Western media that few Egyptians bothered to leave their apartments as a show of respect as Sadat’s funeral procession as it passed through the streets of Cairo because the slain leader was so reviled for shamelessly appeasing the enemy of the Palestinian people.

Above all, the ongoing struggle for Palestinian self-determination is understood by the peoples of the Middle East, and indeed the world over, as a struggle for the empowerment and liberation of the Palestinian people in the face of severe injustices done unto them over a long period of time, and involving such crimes against humanity as apartheid and massacre, verging on genocide. Increasingly, and never more than in reaction to this recent Gaza horror show, the Palestinian struggle will have to be waged not only against Israel, and its American and European allies, but also against the Arab collaborationist governments in the region that have betrayed their own larger religious and cultural identities, and more revealingly, the most fundamental ideas of justice and compassion associated with ideals of humanity and the ethical underpinnings of Islamic unity.

It is notable that only non-Arab Turkey and Qatar have acted responsibly in response to the Israeli attacks that commenced on July under the IDF code name of Protective Edge. The Turkish Prime Minister, Recep Tayyip Erdoğan, has spoken movingly, without hiding his condemnation of Israeli behavior behind the euphemisms of diplomacy, in characterizing Israel’s behavior in Gaza as criminal. Even a group of distant Latin American countries, including Brazil and Chile, have at least shown the depth of their disapproval of Israel’s conduct by withdrawing their ambassadors from Israel. This symbolic expression of disapproval is something that not one government in Europe or North America, the self-proclaimed centers of world civilization, has yet done. The countries of the South have by and large also turned their backs to the Palestinians and the confrontation in Gaza, with the exception of South Africa.

Taken together these considerations make it morally distressing and politically mystifying to observe that almost every Arab governments has seemed either to be flashing a green light in Israel’s direction or pointedly looking away. Given the criminality of the Israeli attack and the tragic suffering inflicted on the Palestinian people, complicity by way of such diplomatic endorsements, or even stony silent acquiescence, is at the very least a breach in Arab and Islamic identity, and worse, seems to be an unimaginable case of aiding and abetting genocidal political violence directed at the Palestinian people. Such a diplomacy of indifference is especially notable as expressed toward Gaza, which is governed by a Moslem-oriented leadership. Israel’s persistence in a massacre mode despite the near universal calls for a responsibly negotiated ceasefire was widely attributed to the fact that the Netanyahu government was being encouraged behind the scenes by Egypt and Saudi Arabia ‘to finish the job,’ not of the tunnels and rockets that served as the security pretext, but of Hamas itself as ‘the head of the snake,’ the one Palestinian actor that continued to believe in a politics of resistance. For these Arab governments to act so opportunistically, particularly given the frequency and magnitude of Israeli atrocities is shocking to all but the most numbed of political imaginations.

To be sure, the behavior of these Arab governments as mystifying, legally and morally unacceptable, and politically self-destructive warrants condemnation, but it also needs to be understood and explained as clearly as possible. What quirks of political realism led these Arab regimes to so calculate their future?

The Enemy of my Enemy

The core explanation of Arab complicity (excepting Qatar) has to do with the Arab governments hating and fearing the Muslim Brotherhood (MB) far more than they resent Israel. This logic is then extended to Hamas, which is misleadingly treated as nothing other than a branch of this supposedly poisonous tree. This hostility to an Islamic movement authenticated from below overshadows Israel’s encroachment on their region, and even its appropriation and control of Muslim sacred places in Jerusalem. In effect what is going on in these top heavy monarchies is a passionate search for protection from possible uprisings by their own populations, which are feared as potential adversaries. Such an initial assessment pushes the question one step further but it does not give us any insight into why this should be so.

What are the sources of this hatred of the MB? The MB is perceived as the essential expression in the Arab world of bottom up political Islam that is viewed as toxic by the established order because of its grassroots legitimacy. This reality has induced panic among these Arab regimes that goes back at least as far as the explosive regional reverberations unleashed by the revolution that overthrew the Shah’s supposedly secure imperial rule in Iran (1979). This revolutionary process caused high intensity tremors, especially throughout the Arab world, and especially among the monarchies nurturing privileged and unscrupulous elites that have long kept their populations cruelly repressed and in backward conditions of mass misery. These regimes, generally aligned with the United States, remain obsessed with the maintaining stability of their own rule, and seem to feel that stifling all voices calling for change is a vital ingredient of their own survival.

Hamas as an active resistance movement is in this sense perceived as an acute threat to the kind of future that these Arab governments are intent of achieving no matter what the costs in lives and societal wellbeing. First of all, Has has historical ties to the Egyptian MB, the older organization of Muslim activists that has kept the flame of political Islam burning despite enduring harsh suppression dating back to decades before Israel came into existence. Secondly, Hamas demonstrated its legitimacy, and credibility as a voice of the Palestinians living in Gaza by its electoral victory in 2006, and more recently by its resilience (sumud) and resistance to Israeli tactics of aggression and massacre. Thirdly, Sunni Hamas crossed sectarian boundaries by having its closest political ties with Shiite Iran and Hezbollah, and the Alawite regime in Syria, and although these relationships have grown weaker as a result of recent regional developments, their very existence further alarms the Sunni supremacists in Riyadh whose second source of anxiety is associated with a sectarian/nationalist struggle that pits Saudi Arabia and its allies against Iran and its allies. The terrible carnage in Syria is one expression of this sectarian dimension of the regional struggle that complements efforts to crush any expression of political Islam with a strong societal base of support.

Egypt’s Betrayal

Of course, in the foreground is the experience of the Arab anti-authoritarian upheavals in 2011, especially the dislodging of Hosni Mubarak in Egypt, followed by expressions of far greater popular electoral support for the Muslim Brotherhood and Salafi candidates throughout Egypt than had been expected by the anti-Mubarak liberals and progressive youth who had earlier dominated the crowds in Tahrir Square. The Gulf countries made no secret of their disappointment with Washington’s refusal to do more to beat back this populist tide that swept over the Mubarak regime, who like the Shah in Iran 30 years earlier, had seemed to offer leaders of these Arab monarchies a model of invulnerability in relation to popular upheavals.

And so two years later in 2013 when the chance came, as it did during the faltering presidential term of Mohamed Morsi, it is no secret that the counterrevolutionary coup led by General Ahmed Fattah el-Sisi was most warmly welcomed by Israel and Saudi Arabia. The Sisi coup won immediate aid bestowed in huge quantities (at least $8 billion) from Saudi Arabia and the UAE, hoping that such a large infusion of cash would create a soft economic landing for the new regime, and set up a contrast with the economic failures of the Morsi government. It was hoped that a rapid economic recovery would reassure the majority of Egyptians that they were experiencing a change for the better even if there was little effort by the new leaders to hide the return to the methods and style of the previously despised Mubarak rule that had prompted the earlier upheaval. What is startling is that these Arab supporters never blinked in the face of the crimes of Sisi’s military leadership in Cairo, which featured a bloody crackdowns of anti-government demonstrations in Cario, including even the killing of many MB members while they were at prayer. Sisi proceeded to move against the MB as an organization, having it criminalized and defined legally as ‘a terrorist organization,’ encouraging judicial action that included imposing mass death sentences on many of its members, and generally engaging in state crime on a scale that far exceeded the abuses of the Mubarak period. Even Washington was embarrassed by these excesses, although it maintained a pragmatic silence that overlooked the tensions between its calls for democracy and its actual strategic goal of restoring the regionalstability of the pre-Arab Spring status quo.

Iran Explodes the Myth of Regional Stability

Until this pattern became evident I didn’t appreciate the relevance of some remarks made to me by Ayatollah Khomeini while in Paris just as he was about to return to Iran from exile to lead the new Islamic Republic in January 1979. This austere religious leader was very clear about rejecting the then prevailing idea that a national revolution was taking place in Iran. He said again and again during the meeting, “This is an Islamic revolution, not an Iranian revolution.” He went on to observe that the dynastic regime in Saudi Arabia was decadent and oriented toward the West. In his view it was as illegitimate a source of governance as was the Shah’s regime that had just been overthrown in Iran, and a justifiable target for further political initiatives by those societal forces that were infused with Islamic values.

The revolution in Iran, whether understood as a national or ideological phenomenon, was deeply threatening to political stability of the region. It was a political movement from below that shattered a monarchic power structure in Iran that was viewed in the region and by the West as invulnerable to internal challenge, once described by Kissinger “as that rarest of things, an unconditional ally.” In other words, it was not just that the foundations of the status quo gave way in Iran, but that their crumbling was brought about by populist tremors that enjoyed widespread cultural legitimacy. It was this cultural legitimacy that again surfaced in the immediate aftermath of the Arab upheavals in 2011, and sent tremors of fear throughout the region, and could not be dismissed on sectarian grounds.

The explosive emergence of the Islamic State of Iraq and Levant (ISIS) reinforces Ayatollah Khomeini’s central message. Its proclamation of a new caliphate is precisely in line with this type of thinking. The whole carving up of the Arab world into a series of sovereign states is seen from these perspectives as an imposition of European civilization, destroying and destabilizing the only true political community, that of the Islamic uma.

Israel’s Parallel Universe

Israeli strategists over the years have been divided about their regional priorities, but agreed on the general contour of principal goals. Israel’s preferred Middle East would consist of governments that were both friendly and stable, which made Iran a favorite until it unexpectedly fell apart in 1978-79. Next best, were governments that were formally cool, or even hostile, but remained mostly on the sidelines in relation to the conflict of with the Palestinians, such as King Hussein’s Jordan, Mubarak’s Egypt, and the Gulf states, especially Saudi Arabia. If such stability was not attainable, then strife in a country that was politically hostile was viewed as next best, which is the story of Syria, and to a degree Iraq, in recent years. In other words, Israel could live with regional actors that were rhetorically hostile, as with passport exclusions or UN speeches, but not with states that were politically hostile, and perceived as allies of Palestinian resistance struggle. In that sense, Israel pushed behind the scenes for the American attack on Iraq after 2001 and has done its best to push the United States into a belligerent encounter with Iran in recent years.

When it comes to Gaza, and Hamas, the convergence of the Israeli approach and the Arab governmental consensus is an invaluable political blessing for Tel Aviv. It gives Israel unlimited space to push its militarist agenda, however great the carnage and devastation, and even if much the rest of the world may lament the assault upon international law and morality. Even the United States, and its ‘subaltern’ UN Secretary General, have felt the pressure to use their influence to establish a ceasefire, although without daring to lift a critical finger in Israel’s direction and following an Egyptian-oriented peremptory diplomacy that seems more concerned about PR dimensions than achieving an end to the violence. This skeptical reflection was confirmed by the initial ceasefire proposal that was presented to Hamas on a take it or leave it basis, and quite incredibly, that its leaders were informed about only through its media publication. The newer ceasefire approach, based on a sequence of 72 hour truces, follows the same pattern with Israeli and American negotiators refusing to sit at the same table as the representative of Hamas, and yet claiming to seek an agreement that would end the violence.

While Israel talks about rockets and tunnels, its massive military operation is being increasingly interpreted by knowledgeable commentators as punitive, and directed not only at Hamas but at Palestinians generally. Some Israeli leaders and their prominent supporters seem to believe that Gazans deserve to die because they voted for Hamas back in 2006, although many Gazans who are dying didn’t back Hamas then or now, and certainly not the Palestinian children who were not even born when Hamas won the elections. A second punitive motivation, and more explicitly endorsed, is a punishment directed at Palestinians in general for daring to form a unity government back in early June, thus challenging ever so slightly the illusion that Israelis had successfully crushed Palestinian political ambition to pursue self-determination by any means other than the futile charade of periodic spurts of diplomacy. Crushing Hamas is seen as a way to make Palestinians submit to the permanence of occupation, the annexation of most of the West Bank, the realities of apartheid administrative and detention policies, and the burial of any prospect of an independent Palestinian state. The Palestinian Authority had been awkwardly docile until it timidly went forward with the unity government, and now must be disciplined by Israel for getting out of line, being taught a lesson once and for all that if it has any future it is to collaborate with Israel, as it had done in the past, with the suppression of Palestinian resistance, above all Hamas, as a telltale sign of its political outlook.

A Concluding Word

More than anything else, these terrible happenings in Gaza should lead to a realization that the future of the Palestinian people and of the region as a whole depends on finding a just solution of the conflict. The abysmal failure of the Kerry induced talks showed definitively that Israel has lost all interest in a diplomacy that promises the Palestinians a viable and independent sovereign state at the end of the road. With a show of self-confidence the Knesset made clear its own rejection of the two-state diversion by choosing an ardent Likud one-stater, Reuven Rivlin, to replace Shimon Peres, as President of Israel. It is past time for the peoples of the world to wake up to the real nature of the challenge and support a more militant international campaign of solidarity with the Palestinian struggle, and insist on boycott and divestment in all venues, working to support arms embargoes and sanctions on the part of as many governments as possible.

Richard Falk

Richard Falk is an international law and international relations scholar who taught at Princeton University for forty years. Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies and since 2005 chaired the Board of the Nuclear Age Peace Foundation. He initiated this blog partly in celebration of his 80th birthday.